Rashmidutt v. Amit Passi & Ors.

1. This appeal emanates^frofh.un ord^r,,dafed 7^*^ February,2017, passed by the learned Single Judge in LA.13127/2016, filed by Ms.Rashmi Dutt under Order XXXII Rule 1,read with Section 151 of the Code ofCivil Procedure, 1908 (hereinafter refer to as"the CPC") in CS(OS)2740/2015.

2. CS(OS)2740/2015 was filed by Amit Passi, one ofthe grand sons oflate Shri J. S. Passi, seeking partition, by metes and bounds, amongst the various heirs of Shri J. S. Passi, of the suit properties, FAO(OS)95/2018 Page 1 of[7] 2018:DHC:8719-DB constituting (i) B-2/20 Vasant Vihar, New Delhi (ii) R-2/613, Raj Nagar, Ghaziabad, (iii) Flat No. 903, 27 Barakhamba Raod and (iv) Flat No. 1108, 26 Kasturba Gandhi Marg. The "Passi family tree" was depicted, in the plaint, thus:

J. S. Passi Smt. Raj Rani Passi

[karta] (Wife) [Diedon 20.11.1982] [Diedon 23.11.2004] i J, A. K. Passi [Son] [DefNo. 4] y t K. K. Passi [Son] [DefNo. 1] z Luv Passi Kush Passi [Son] [Son] [DefNo. 2] [DefNo. 3] K K. Passi [Son] [DefNo. 6] Amit Passi Aneesh Passi [Plaintiff] [DefNo. 5] I 1 Hemant Passi Gaurav Passi [DefNo. 7] [DefNo. 8]

3. Preliminary and final decrees ofpartition ofthe suit properties were also sought, in the plaint.

4. Given the limited nature of the controversy in the present appeal, it is not necessary to refer, any further, to the particulars ofthe said plaint. Suffice it to state that the present appellant Ms. Rashmi Dutt, who claimed to be "like a daughter" to K.K. Passi, moved two applications, the first seeking impleadment in the plaint, and the FAO(OJ)95/20I[8] Page2of[7] second being lA 13127/2016, which stands dismissed by the impugned order of the learned Single Judge, and where from the present appeal emanates. In lA 13127/2016, filed under Order XXXII Rule 1 ofthe CPC, the appellant pointed out that, apart from Luv Passi and Kush Passi, K.K. Passi also had a daughter, Kajal Passi, who, she alleges, was "mentally deficient" and whom she had been taking care of, since long. Premised on these assertions, the appellant prayed, in her application, that she be appointed guardianad litem of Kajal Passi. K.K. Passi, it may be noted here, expired on 23'^'' November, 2004. The appellant asserted, in her IA, that Kajal Passi had been under treatment on the Research and Referral Hospital (R & R Hospital), and had been referred to the Base Hospital, Delhi Cantt. on 20'^ August,

2016. The appellant contended that she was the only person, who took care of Ms.Kajal Passi and that, in fact, on the demise of Shri K. K. Passi, it was the appellant who had collected his body from the mortuary and arranged for its cremation. The appellant further contended, in her application, that she had been looking after Ms. Kajal Passi for a considerable period of time and was fit to be appointed as her guardian, in terms of under Order XXXII Rule 1 of the CPC.

5. We may note, here, that, though IA 13127/2016 purports to have been filed under Order XXXII Rule 1, it actually invokes Rules 1 and 15 of Order XXXII. Rules 1 and 15 of Order XXXII may be reproduced, for ready reference, thus: "i. Minor to sue by next friend. - Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the nextfriend ofthe minor. FAO(OS) 95/2018 Page[3] of? Explanation. - In this order, "Minor" means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit relates to any ofthe matters mentioned in clauses (a) and (b) ofsection 2 ofthe Act or to any other matter.

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 to being sued. " \0

6. The impugnedjudgment, passed by the learned Single Judge, on the application ofthe appellant, reads as under: ''LA. 13127/2016 (O 32 R 1) Vide this application under Order 32 R 1 moved by Ms. Rashmi Dutt who is present in the court today, it is prayed that she be appointed a legal guardian to Ms. Kajal Passi on the ground that Ms. Kajal Passi is a person with mental deficiencies and has been under treatment at R & R Hospital and at Base Hospital ofthe Army, Delhi Cantt on several dates. Along with this application, no medical documents showing the mental condition of Ms. Kajal Passi has been placed by the applicant. The application is strongly opposed by Ms. Kajal Passi who is about 46 years ofage. She is present in the Court in person and she has categorically stated that she does not want applicant to be her guardian and she is of FAO(OS) 95/2018 \ the view that she has some ulterior motives in becoming her guardian. It issubmitted thatshedoes notneedanyguardian. The other defendants were related to her are there to take care ofher in case ofneed. It isfurther submittedthat she hasno mental deficiency and isaperson ofsound mind. Heard. Perused the record. In view of the fact that applicant has not even contended that Ms. Kajal Passi is a person of unsound mind andonly stated that she has some mental deficiency and the nature ofmental deficiency is also not disclosed in the application and since there is no document to support even remotely the contents ofthe application and also because she, in no manner, is related to Ms. Kaja Passi, I found no merit in the application particularly when Ms. Kajal Passi has herselfstatedbefore the Court that she does not wish the applicant to be her guardian and that she does not needanyguardian. The application stands dismissed. "

7. Though the aforementioned order really did not call for any interference, in appeal, especially in view of the statement, by Ms. Kajal Passi herself, that she did not suffer from any mental deficiency, we, keeping in mind the sensitivity of the issue, directed the R & R Hospital and the Base Hospital, vide our order dated 6'^ April, 2018, to verify, from the records, as to whether Ms. Kajal Passi had ever been examined by them, and if so, to produce the records before us. On the next date of hearing, i.e. 26^'' April, 2018, we were informed, by a representative of the R & R Hospital, that it was not in possession of any documents relating to Ms. Kajal Passi. We, accordingly, sought for a report from the Base Hospital. FAO(OS) 95/2018 Page 5of?

8. A communication, dated 9"" August, 2018, on behalf of the Commandant, Base Hospital, has been placed on record, confirming that Ms. Kajal Passi was indeed admitted in the Base Hospital from 25'^ February, 2013 to February, 2013. The Admission Slip and Discharge Slip, relating to Ms. Kajal Passi are annexed to the said communication.

9. On a perusal ofthe said Admission Slip and Discharge Slip, we find nothing, therein, to substantiate the appellant's contention that Ms. Kajal Passi was mentally incapacitated, or being treated for any mental disorder. Rather, we find that the provisional diagnosis, as entered in the Admission Slip, is of "domestic violence" and the final diagnosis, as contained in the Discharge Slip, is of"physical violence" and "domestic violence". The Discharge Slip also notes that Ms. Kajal Passi was "discharged to home" and was "walking" at that time. Clearly, therefore, the contention, of the appellant, that Ms. Kajal Passi was suffering from any mental disorder and required the appellant to be appointed as her guardian ad litem, is totally bereft of substance.

10. The reason for such a false case having been set up, by the appellant, firstly in the suit, and later in the present appeal, may arise for consideration at an appropriate stage; however, we do not propose to venture into the said territory inthis appeal. FAO(OS) 95/2018 Page 6of? V \>

11. In view of the report received from the Base Hospital, we are convinced that there is no merit, either in the application filed by the appellant, under Order XXXII ofthe CPC, before the learned Single Judge, or in the present appeal, preferred against the decision of the learned Single Judge thereon.