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TMI Blog2016 (7) TMI 1670X X X X Extracts X X X X X X X X Extracts X X X X ..... uct an independent and impartial evaluation as it may deem fit and proper, depending on the facts and circumstances of each case. Only after arriving at the conclusion that a person is mentally incapable or unable to prosecute/defend the case, would the court proceed to appoint a fit person as his guardian ad litem. While doing so, the court must be mindful of the fact that such a person does not have any interest that is adverse to the applicant. Coming to the case in hand, the respondent No. 3 has presented himself before the court and during its interaction with him, posed several questions about his routine life, his family members and work and other aspects. He has stated that he had a major road accident in the year 1999, and had suffered serious brain damage as a result whereof, he has lost the ability to read and write - the respondent No. 2 is the younger sister of the respondent No. 3, and is present in Court, but he has not been able to identify her. Considering the mental faculty of the respondent No. 3 as has emerged from interacting with him, this court is of the opinion that he would not be in a position to protect his interests in the present petition as he ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the procedure to be adopted in a suit filed by or against minors and persons of unsound mind. In the facts of the present case, Order XXXII Rule 15 CPC would be relevant for consideration and is extracted below: 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 used. 4. On a bare reading of the aforesaid provision, it is quite evident that the court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind and further, the court is entitled to apply the said provision to a person who is not adjudged of unsound mind but on inquiry, found to be incapable of protecting his interest while suing or being sued on account of suffering from any mental infirmity. The aforesaid provision casts a solemn duty on the court to conduct an enquiry to assess the ability of a party to the proceedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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. 12. 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 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. (emphasis added) 8. The parameters of the inquiry required to be conducted under Order XXXII Rule 15 CPC were enunciated in the case of Som Nath (supra) in the following manner:-- 17. The above discussion clearly leads to the logical conclusion that when the plaint is being examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Khanna, ILR (1997) 2 Delhi 492. The idea behind undertaking such an enquiry is that the court must first satisfy itself about the mental aptitude of the concerned party before proceeding to appoint a guardian ad litem for him/her. The said position has also been underscored in the case of Jairam Gurnani v. Smt. Shanta Gurnani, (1979) 15 Delhi LT 8 and Jai Prakash Goel (supra). 10. In the case of Jai Prakash Goel (supra), relying on the decision of the Supreme Court in the case of Kasturibai (supra), it was held that even if a person is not adjudged to be of unsound mind, but on inquiry by the court found to be incapable of protecting his interest when suing or being sued for reasons of mental inability and infirmity, appropriate order thereunder can be passed under Rule 15 of Order XXXII. The Court had laid emphasis on the parameters of evaluating the mental condition of the concerned party and had observed that the court would be competent to pass an order upon it being satisfied with regard to the party's mental competence. 11. The nature of formal enquiry contemplated in the aforesaid provision is not of a kind that is required to be conducted under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is ultimately left with the court concerned to conduct an independent and impartial evaluation as it may deem fit and proper, depending on the facts and circumstances of each case. Only after arriving at the conclusion that a person is mentally incapable or unable to prosecute/defend the case, would the court proceed to appoint a fit person as his guardian ad litem. While doing so, the court must be mindful of the fact that such a person does not have any interest that is adverse to the applicant. 14. Coming to the case in hand, the respondent No. 3 has presented himself before the court and during its interaction with him, posed several questions about his routine life, his family members and work and other aspects. He has stated that he had a major road accident in the year 1999, and had suffered serious brain damage as a result whereof, he has lost the ability to read and write. Though he understands the questions being posed to him, his answers are found to be rather stilted and disjointed and shows a vacillating state of mind. That apart, it is noticed that the respondent No. 3 is irresolute, wavering and repetitive. Although he states that he is a Chartered Accountant by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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