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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 ..... ng the wife of the respondent No. 3, has been looking after him and attending to his daily needs over the years and he continues to remain in her care and custody. He states that the petitioner and the respondent No. 3 have two daughters; the elder one is already married and the younger one is studying law in Bangalore and it is the petitioner, who has been taking care of all the needs of her children and bearing all the expenses for their upbringing and education. It is in this background that the present application has been filed for permission to appoint the petitioner as the guardian ad litem of the respondent No. 3, on the ground that he is not capable of securing his affairs and her interest does not clash with that of her husband, in any manner. 3. To start with, it is considered essential to examine the scope of the relevant provision of the CPC, namely, Order XXXII entitled "Suits By or Against Minors And Persons of Unsound Mind" which lays down 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipanna Ram Chandra reported as AIR 1973 Bombay 276; (ii) Kasturibai v. Anguri Chaudhary reported as (2003) 3 SCC 225; (iii) Jai Prakash Goel v. State reported as 114 (2004) DLT 222 (iv) Shailendra Bhargava v. Kanhiyalal Bhargava reported as 2006 (VII) AD (DELHI) 857; (v) Anuradha Jha v. Santosh Singh reported as 2008 (102) DRJ 86 (DB); (vi) Surinder Kaur v. Sardar Rajdev Singh reported as 2009 (V) AD (DELHI) 545" 7. In the case of Kasturibai (supra), while discussing the provisions of Rule 15 of Order XXXII CPC, the Supreme Court had stated as below:-- "11. 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 provided that even if a person is not so adjudged but is found by court on inquiry to be incapable to protecting his or her interest when suing or being sued or 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 effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade "for the purpose of recording a finding by the court that the plaintiff is a person of unsound mind, or a person mentally so infirm as to be incapable of protecting his own interests. The provisions of Rule 15 of Order 32 makes it possible for a next friend to sue on behalf of an adult person as a next friend only when the person is either so adjudged by a court of competent jurisdiction, or if not so adjudged, is found by the court on inquiry to be so. That is the foundation, prima facie, for a next friend to avail and proceed with the suit. Such inquiry is obviously an ex parte inquiry for the court to give a finding and to admit the plaint and issue the process to the other side." (emphasis added) 9. For satisfying itself about a party's mental retardation or infirmity, the court can conduct an enquiry on this aspect, as has been laid down in Om Prakash Sharma v. Union of India, 1984 (7) DRJ 208 and B.K. Khanna v. K.N. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir interests in judicial proceedings by reasons of unsoundness of mind or mental infirmity." 13. It may thus be concluded on a conspectus of the decisions rendered on the aforesaid aspect that the necessity of holding an inquiry under Rule 15 Order XXXII CPC emanates from the fundamental right of equal opportunity provided to every person under the Constitution of India, to sue or be sued and prosecute/defend his/her claim in a court of law. The cardinal principle of inquiry required to be conducted by a court as envisaged under Rule 15, is to assess as to whether the person concerned suffers from any unsoundness or mental infirmity, which makes him incapable of protecting his interest in a litigation. Thus, holding of an inquiry is a sine qua non and the court is empowered to appoint a guardian in the event a person is adjudged to be of unsound mind and/or incapable of protecting his/her interest in a litigation. The discretion 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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