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IN SUPREME COURT OF INDIA Page 1 of 3

CASE NO.:
Appeal (civil) 818 of 2001

PETITIONER:
KASTURI BAI AND ORS.

RESPONDENT:
ANGURI CHAUDHARY

DATE OF JUDGMENT: 05/02/2003

BENCH:
S.B. SINHA & AR. LAKSHMANAN

JUDGMENT:
JUDGMENT

2003(1) SCR 892

The following Order of the Court was delivered

This appeal is directed against a judgment and order dated 11.8.2000 passed
by a Division Bench of the Madhya Pradesh High Court at Jabalpur in MCC.
No. 482 of 1999 whereby and whereunder it refused to entertain an
application filed by the appellants herein purporting to be under Section
151 of the Code of Civil Procedure, 1908 (for short ’C.P.C.’) for recalling
of an order passed by a learned Single Judge of the said Court dated
5.5.1999 passed in Civil Revision No. 2761 of 1998 which in turn arose out
of an order dated 3.11.1998 passed by the Additional District Judge,
Shahdol, Madhya Pradesh in Civil Suit No. 2-A of 1993 dismissing an
application filed by the respondent herein under Order 32 Rule 15, C.P.C.

The plaintiff-respondent filed a suit against the appellant herein for

partition of certain immovable properties. The appellant No. 1 herein at
the relevant point of time was aged 87. Alleging inter alia that she had
lost her ability to understand and further is not capable to give
instructions to her lawyer or anybody else relating to the said suit, a
prayer was made by the respondent herein that she be summoned in the Court
so as to enable the court to inquire about her state of mind and upon
medical examination. If necessary, a guardian be appointed for defending
her in the suit.

The learned trial Judge by reason of the order dated 3.11.1998 dismissed
the said application stating

".... But in the verification para of her affidavit Anguri Chaudhary has
verified para 1-3 and 4 of the affidavit on the basis of her personal
knowledge and para 2 on the basis of knowledge received from her relations
and known persons. But Anguri Chaudhary has neither mentioned the names of
her relations and known persons nor disclosed the time and place of
receiving the knowledge from them. No explanation has been given for
inordinate delay of 49 months in bringing the fact of forged signature of
Kasturibai on her written statement filed on 31.8.94. In this case
Kasturibai is defendant No. 1 but in I.A. No. 17 and affidavit in support
she has been referred as "defendant No.3" and." defendant No. 3
Kasturibai". The affidavit of Anguribai filed in support of IA. No.17 is
not reliable in these circumstances. Therefore IA. No. 17 is dismissed."
Questioning the said order, the respondent herein filed a revision
application in terms of Section 115 of C.P.C. before the High Court. The
said application was marked as Civil Revision No.276l of 1998. The High
Court by reason of its order dated 5.5.1999 allowed the revision
application directing

".....The applicant/plaintiff has filed the instant Civil Suit against the
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non-applicants/defendants for partition, possession and rendition of
accounts. The non-applicant No. I is old lady of 87 years of age and she
has developed forgetfulness. Therefore, the applicant had made an
application under Order 32 Rule 15. CPC, for appointment of a guardian for
defending her in the suit. The appointment of guardian would not cause any
prejudice to either parties. The trial Court acted with material
irregularity in rejecting the application of the applicant under Order 32,
Rule 15 CPC. The impugned order, therefore cannot be sustained. Accordingly
it is set aside and in the result, the revision succeeds and is allowed."

The appellants herein filed an application for recalling of the said order,
inter alia, on the ground that notices upon them were not served. Curiously
enough, the said application, instead of being placed before the learned
Single Judge who had disposed of the civil revision application, was placed
before a Division Bench. The Division Bench considered said application to
be an appeal against the order of the learned Single Judge and dismissed
the same by reason of the impugned order.

Shri Gaurav Jain, the learned counsel appearing on behalf of the appellants
has raised a short question in support of this appeal . The learned counsel
would urge that having regard to the provisions contained in Order 32 Rule
15, C.P.C., the learned Single Judge could not have directed that a
guardian be appointed for the respondent herein although the learned trial
court did not make an inquiry in that behalf as is required in terms of
Order 32 Rule 15, C.P.C.

Shri B.S. Banthia, the learned counsel appearing on behalf of the

respondent, on the other hand, would contend that as the appellants herein
had not questioned in this appeal the aforementioned Order dated 5.5.1999,
this appeal is not maintainable.

Having heard the learned counsel for the parties, we are of the opinion
that the Division Bench of the High Court committed a manifest error in
treating the application for recalling, as an appeal against the order
passed by the learned Single Judge. No intra court appeal lay before a
Division Bench against the order dated 5.5.1999 as the same was passed by
the High Court in exercise of its revisional jurisdiction.

Shri Jain, therefore, has rightly submitted that the order of the learned
Single judge must be held to have merged with the order of the Division
Bench.

Order 32 Rule 15, C.P.C. reads thus:

"15. Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind -

Rules 1 to 14 (except rule 2A) shall, so far as may be apply to persons
adjudged, before or during the pendency of the suit, to be of unsound mind
and shall also apply to persons who, though not so adjudged, are found by
the Court on enquiry to be incapable, by reason of any mental infirmity, of
protecting their interest when suing or being sued."

On a bare perusal of the said provision, it is evident that the Court is

empowered to appoint a guardian in the event a person is adjudged to be of
unsound mind. It further provides that even if a person is not so adjudged
but is found by court on inquiry to be incapable of protecting his or her
interest when suing or being sued by reason of any mental infirmity, an
appropriate order thereunder can be passed. The respondent did not contend
that appellant No. 1 herein is of unsound mind. As noticed hereinbefore,
the respondent herself had filed an application before the trial court for
holding an inquiry to the effect that she suffers from mental infirmity.

The learned trial court refused to do the same and in that view of the
matter the High Court, in our opinion, while setting aside the said order
could only issue a direction directing the learned trial Judge to hold an
inquiry so as to enable it to arrive at a finding as to whether the
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respondent herein was incapable of protecting her interest by reason of any
mental infirmity or not. As no such inquiry was held, there cannot be any
doubt whatsoever that, the learned Single Judge committed a jurisdictional
error in passing the impugned judgment which, the Division Bench as noticed
hereinbefore upheld.

For the reasons aforementioned, the impugned judgments are set aside and
the matter is directed to be remitted to the learned trial Judge for
consideration of the matter afresh strictly in terms of Order 32 Rule 15 of
the Code of Civil Procedure as also in the light of the observations made
hereinbefore.

This appeal is, thus, allowed. However, in the facts and circumstances of
the case, there shall be no order as to costs.