1. In this case a Rule was issued calling upon the opposite party to show cause why the orders, dated the 15th September and 28th November 1921, should not be set aside and why the Court should not be directed to hold a judicial enquiry into the matter. The Rule arises in connection with an application under Order XXXII, Rule 15 of the Civil Procedure Code, to appoint a guardian of a defendant who is alleged by the applicant, the opposite party, to be of unbound mind or mentally infirm, an allegation which the plaintiff denies.
2. It has been, in the first place, contended that this Court has no power to interfere under Section 115 or the Civil Procedure Code. We think, however, that the answer to this is that there is in this case material irregularity in the exercise of jurisdiction within the meaning of that section, because, in the first place, it is alleged (and so far as the record before us shows such allegation seems to be proved) that the Judge's order was based simply upon an inspection and an interview he had with the defendant who is alleged to be of unsound mind or mentally infirm within the terms of the Rule. In the second place, it appears to us to be doubtful whether the Judge has come to the necessary conclusion which justifies the appointment of guardian under the Order I have quoted, It must be found, to use the words of that rule, that 'by reason of unsoundness of, mind or mental infirmity to be incapable of protecting their interests when suing or being sued' The actual finding of the Subordinate judge is this: 'It is difficult ,to lay down what amount of intelligence and mental capacity is needed to protect one's interest in a litigation of this character, but from whit I saw I am of opinion that the defendant has not the amount of mental vigour necessary for the purpose. I, therefore, hold that a guardian ad litem should be appointed in this case on behalf of the defendant No 1. We need not go into the question which has been to some extent argued before us as to whether or not the rate applies to a case such as this, where it is not alleged by the plaintiff but denied that the defendant is of unsound mind or mentally infirm or a minor, as the case may be. We will assume for the purpose of this judgment, without deciding the matter, that the case does fall within the terms of the section, because the learned Advocate-General who obtained this Rule id satisfied with an order in terms of that rule All that he asks is that there should be a judicial enquiry before an order is made in terms of that section. The question then arises as to the nature of such an enquiry. In the circumstances, it is to be observed that in this case the question of the alleged unsoundness of mind or mental infirmity of the defendant is a material, and perhaps, the most material issue in the case. In the circumstances of this case (out remarks are confined to the facts which are placed before us) it would be difficult to avoid prejudicing the plaintiff if any enquiry were held short of the fullest. No doubt the issue is strictly whether the defendant is of unsound mind or mentally infirm when called upon to plead, and the issue in the suit is whether the defendant was of unsound mind or mentally infirm at the date of the agreement of which specific performance is sought.
3. But it is manifest that it may be material on the question, whether he is now of unsound mind, to go into the previous history of the alleged unsoundness or mental infirmity. This is particularly so, seeing that unsoundness of mind or mental infirmity is not merely denied in this case but it is suggested that such unsoundness of mind or mental infirmity is set up as a false defence to the suit in which, as we have said, it is the principal issue. It may, therefore, well be that the anterior state of things is relevant on the question of the present unsoundness of mind or mental infirmity; and if so, it is necessary to go into the anterior history of the case, and it seems to us that it will be best that the judicial enquiry Should be through. It is true, as the learned Judge has himself said or indicated, that in a case of this kind the only way to avoid prejudice to the parties is either by taking very little evidence at all or by taking that evidence in full. It is true that the decision under this rule does not determine the issue in the case; but if a full enquiry is now made it may possibly turn out that at the hearing it may not be necessary to go into the question again. We must not be understood as' saying that the plaintiff is not entitled to go into such issue whatever may be the determination under this rule; but that it may possibly be that if a full enquiry be made now, he may not think it necessary to contest the matter further.
4. The order, therefore, we make is that the Rule is made absolute and the orders dated the 15th September and 28th November 1921 are set aside, and we direct the Judge to hold a judicial enquiry into the question of the alleged unsoundness of mind or mental infirmity, a judicial enquiry at which both parties will be entitled to adduce evidence.
5. We make no order as to costs now which will follow the result of the judicial enquiry by the Judge. The hearing fee in this Rule is assessed at five gold mohurs.