(1) The first defendant is the petitioner. The relevant facts necessary for purposes of this case may be summarised as follows: The first defendant filed I.A. No. 374 of 1962 in the Court of the Subordinate Judge Tirunelveli, under O. 3, R. 1, O. 32, R. 15, O. 26, R. 1 and S. 151, Civil P.C., for the examination of the first plaintiff by a medical expert to ascertain his mental condition and to find out whether he is capable of managing his affairs. Apparently, this application was taken by the first defendant with the object of appointing a next friend or guardian to the first plaintiff under O. 32, R. 15, Civil P.C. This application was opposed by the first plaintiff and his brother the second plaintiff. In the counter filed, the first plaintiff avers that "the plea that he should be represented by a next friend is a malicious one and that it is not bona fide". He has also produced their family doctor's certificate to show that the allegations of the first defendant are false. In the main, the first plaintiff's contention is that there is on mental infirmity in him and that he is capable of managing his affairs or that of the joint family consisting of himself fan his two sons. He would add that no next friend is necessary. Thereafter the first plaintiff's son applied for impleading themselves as parties to the suit. During the pendency of this application, one of the first plaintiff's sons Subramaniam, whom I shall refer to by name hereafter, filed I.A. No. 149 of 1965 under O. 32, R. 15, to be appointed as next friend of his father. Subramaniam reiterates that though his father, the first plaintiff, requires on guardian under O. 32, R. 15, but he is applying for the same without prejudice and in order to obviate delay and in view of the attitude of the first defendant. This application I.A. No. 149 of 1965, was opposed by the first defendant on two grounds: firstly, that unless there is a candid admission that the first plaintiff is by reason of the mental infirmity, incapable of managing his affairs and secondly, unless there is a finding to that effect, on a judicial enquiry an investigation made by Court, as envisaged under O. 32, R. 15, the application is incompetent.
(2) One thing emerges from the above background as to facts of the case. The first plaintiff (the father) would swear that he is mentally alert and that the application for his examination by an expert is malicious and misconceived. he is prepared to conduct the litigation on his own though he is deaf and dumb and is of the opinion that any one who is not intimately acquainted with him can reach his mind and interpret it. But his son Subramaniam would hesitantly say that without prejudice he would concede that his father is unable to manage his affairs and in order to avoid delay and protraction of the main suit, he would like to act as his father's next friend. These two irreconcilable and indeed contradictory stands taken respectively by the father and the son do create a cloud of suspicion as to the capability of the first plaintiff to stand on his legs and conduct the litigation. No doubt, the first defendant by applying for the examination of the first plaintiff by an expert, in I.A. No. 374 of 1962 has taken a defined step towards the appointment of a guardian for the first plaintiff. He has also made indeed self-serving statements in the course of the proceedings that the suit is not maintainable without a next friend being appointed for the first plaintiff.
Appointment of a guardian or next friend to a person who is incapable of managing his affairs is a serious inroad upon the litigant's right to carry on his suit. Such wedging of a personal right in a party cannot be deduced inferred or even taken for granted because the other parties to the lis have no objection to such an appointment. The Court has a primary duty to perform in such circumstances. It has to judicially enquire whether it is necessary in the interests of justice. Mere and sole reliance upon the wishes and sentiments expressed by the other parties to the suit would neither be a guide or a safe guide. Even so, the fact that the first plaintiff is deaf and dumb cannot make a significant difference. In fact, the first plaintiff himself does not subscribe to the position that he is so incapable of managing his affairs. Notwithstanding the consensus of opinion amongst the other parties to the suit, the Court cannot dispense with the judicial enquiry contemplated under Order 32, Rule 15 and render a clear finding that the person concerned, by reason of his infirmity, either physical or mental, is incapable of protecting his interests, in the suit. The holding of such an enquiry is thus inescapable and consent cannot vest jurisdiction in Court to dislodge or divest the right of a litigant to conduct his suit, by superimposing a guardian or a next friend. As was pointed out in Nirendra Lal Bhattacharya v. Bepin Chandra Bhattacharya, AIR 1935 Cal 224:
"But the words of the rule require something more, namely, that it should be found on enquiry that by reason of unsoundness of mind or mental infirmity the person is incapable of protecting his rights as a plaintiff or as a defendant. Such a finding will have to be arrived at and it must be arrived at upon an enquiry properly held."
(3) In fact, Courts in England have taken a similar view, though strictly the rules therein do not contemplate an enquiry. Satyanarayana Rao J. in Mohamed Ibrahim v. Mohamed Marakayar, AIR1949 Mad 292, 294, held:
"...............the Courts in England held that the Court had ample power to enquire into and adjudicate upon the question of the unsoundness of mind of either the plaintiff or the defendant, as the case may be. This was established by the decision in Howell v. Lewis, (1891) 65 LT 672 = 61 LJ Ch 89, a judgment of Kekewish J. In that case the jurisdiction of the Chancery Court in such matters which was expounded with clearness by James LJ in Beall v. Smith, (1873) 9 Ch. A. 85 = 29 LT 625, was referred to as well as the decision in Lee v. Ryder, (1822) 6 Madd 295 = 56 ER 1103, the learned Judge observed at p. 673 as follows:--
"Thereupon the Vice-Chancellor made the order which is set out at the bottom of the page, and which, in short, directed an enquiry whether the defendant was competent to defend in his own person, or whether a guardian ought to be appointed. That seems to give me a guide to what I should do in this case." In re Periasami Goundan, , is a case of a deaf and mute person who was
leading a family life. Even then a judicial enquiry was held before a next friend was appointed. In the decision in Nanakchand v. Banarsidas, AIR 1930 Lah 425, quoted by the learned counsel for the respondent, the question whether an enquiry under O. 32, R. 15, Civil P.C., is mandatory, did not arise. In Rami Reddi v. Papi Reddi, , Venkatesam J., after reviewing the
authorities, laid down the following principles:--
"............. (1) O. 32, R. 15, Civil P.C., places persons of unsound mind or persons so adjudged in the same position as minors for purposes of Rr. 1 to 14...........
(3) Where it is alleged that a party to a suit is of unsound mind, and the other party denies it, the Court must hold a judicial enquiry and come to a definite conclusion as to whether by reason of the unsoundness of mind or mental infirmity, he is incapable of protecting his interest in the suit.
(4) Mental infirmity may even be due to physical defects, if it renders him incapable of receiving any communication, or of communicating his wishes or thoughts to others.
(5) Whether a person is of unsound mind or mentally inform for the purpose of the rule and the extent of the infirmity has to be found by the Court on enquiry.
(6) Where the question of unsoundness of mind arises not only under O. 32, R. 15, Civil P.C., but is also one of the issues in the suit, the Court has ample jurisdiction to enquire into that question, and for that purpose seek judicial opinion........"
I adopt with respect such guides as laid down by the learned Judge.
(4) A Division Bench of the Allahabad High Court in Bhondumal v. Thomas Skinner, AIR 1937 All 29, 32, took the view:
"Lunatics are under the peculiar probation of the Court, and from the mere fact that by reason of the ignorance of the Court no enquiry was made, the decree passed in the earlier suits cannot be said to be binding on the lunatic."
The same principle would apply event o a person suffering from an infirmity and, therefore, unable to look after himself.
(5) From a review of the above judicial precedents, it is clear that a person who is deaf and mute and characterised as suffering from a mental infirmity, cannot be taken for granted as one who should be represented by a next friend. An enquiry and indeed a proper enquiry with the assistance of medical experts is called for. Such an enquiry can be held even at the appellate stage, if such a question directly arises thereat. The learned Subordinate Judge, instead of holding such an enquiry, was satisfied in appointing the son as the next friend of the father on the only ground that all other parties before him at one time or other are holding infirm. I have already referred to the inconsistent positions taken by the concerned parties of whom the first plaintiff himself is one. In this nebulous state of affairs, the order of the lower Court in appointing a next friend straightway without the attendant enquiry to precede it is illegal and is without jurisdiction. The order of the learned Subordinate Judge is, therefore, set aside. The civil revision petition is allowed with costs.