Full Text
Date of Decision: 13th March, 2018 CS(OS) No.499/2009 & CC Nos. 81/2009 & 40/2010, IA Nos.
17283/2013 (u/O VII R-11 CPC), 2432/2015 (u/O VI R-17
CPC)
SHYAMA PAHWA ..... Plaintiff
Through: Mr. Shailendar Dahiya, Adv.
Through: Mr. Sajan Narain, Adv. for D-1&2.
Mr. Sunil Goyal, Mr. Deepak, Adv. for D-3.
Ms. Suruchi Suri, Adv. for D-4.
JUDGMENT
1. The plaintiff, aged 73 years at the time of institution of the suit, in the year 2009 instituted this suit against her three brothers impleaded as defendants no.1 to 3 viz. a) Narendra Pratap Bhalla, b) Bharat Bhushan Bhalla; and, c) Mahinder Pratap Bhalla and her sister Smt. Kamla Ohri (defendant no.4).
2. It was the case in the plaint i) that the plaintiff had been suffering from chronic depression for the past 30/40 years and had been under psychiatric treatment since 1961; ii) that the plaintiff was residing at Mumbai since 1982 but used to visit her parents and stay 2018:DHC:1772 with them in Delhi in property No.S-61, Greater Kailash Part-I, New Delhi; iii) that the plaintiff, in August, 2008, shifted to Delhi along with her husband; the husband of the plaintiff died on 19th September, 2008; iv) that the condition of the plaintiff deteriorated in the last few months preceding the filing of the suit and the plaintiff had been suffering from Bipolar Affective Disorder with symptoms suggestive of Dementia; v) that the neuropsychological assessment of the plaintiff reflected impairment in functioning of temporal lobe, Visuospatial Perceptual ability and Parieto-Occipital Lobe functioning; vi) that plot bearing No.S-61, Greater Kailash Part-I, New Delhi, ad-measuring 500 sq. yds. was purchased by the plaintiff‟s father Sh. Harcharan Dass Bhalla from his own funds and the father of the plaintiff carried out construction on the said property with his own funds; vii) that Sh. Harcharan Dass Bhalla, father of the plaintiff died intestate on 4th August, 1980 leaving the plaintiff and the defendants as his only children and Smt. Basant Bhalla as his wife, as his only natural heirs; viii) that Smt. Basant Bhalla, mother of the parties to the suit also expired intestate on 26th January, 2007, leaving the plaintiff and the defendants as her only natural heirs; ix) that the plaintiff thus has a 1/5th share in property No. S-61, Greater Kailash Part-I, New Delhi; x) that the defendants no.1 to 3, being the brothers of the plaintiff, are occupying the ground, first and second floors of the said property as co-owners and the plaintiff, though not in physical possession, is in symbolic and deemed possession, jointly with the defendants no.1 to 3; xi) that the defendants always recognized the plaintiff as joint owner of the property; xii) that the plaintiff visited defendants no.1 to 3 in the property on 28th September, 2008 and stayed with the defendants till 13th October, 2008; xiii) that the defendant no.1 asked the plaintiff to sign on some typed papers without understanding the contents of the same and also threatened the plaintiff; xiv) that the plaintiff was taken to some place where some other persons were also present and further signatures of the plaintiff obtained under threat and coercion; xv) that the plaintiff was cautioned of not disclosing the same to her family members; xvi) that the plaintiff being scared, signed the papers without any objection; xvii) that the plaintiff informed her son of the said incident; xviii) that when the son of the plaintiff enquired from the defendant no.1, the defendant no.1 shouted at him also and the defendants no.2 and 3 denied any involvement; xix) that the plaintiff is not aware of the nature of the documents got signed from her; and, xx) that the documents which were got signed from the plaintiff are bound to be cancelled and declared null and void and not binding on the plaintiff.
3. On the aforesaid pleas, reliefs of a) partition of property No.S- 61, Greater Kailash Part-I, New Delhi; b) injunction restraining defendants from dealing with the said property; c) recovery of mesne profits; and, d) declaration that the documents got executed from the plaintiff are null and void and unenforceable against the plaintiff, were claimed.
4. The counsel for the plaintiff, in the hearing on 27th November, 2017, informed that the plaintiff was claiming the reliefs of declaration as sham, fabricated, null and void and unenforceable of i) Composition Deed dated 12th October, 1964 allegedly executed by Smt. Basant Bhalla and Sh. Harcharan Dass Bhalla; ii) judgment and decree dated 17th July, 1975 in Civil Suit No.397/1974 titled “Narendra Pratap Bhalla Vs. Harcharan Das Bhalla”; iii) the Will dated 21st June, 1965 allegedly executed by Sh. Harcharan Dass Bhalla in favour of defendants no.1&2; and, iv) the Relinquishment Deed dated 12th January, 1995 allegedly executed by Smt. Basant Bhalla in favour of defendant no.2.
5. The suit was instituted and the plaint signed and verified, not by the plaintiff herself but by her son, as her next friend and was accompanied with IA No.3488/2009 under Order XXXII Rules 3 and 15 of the CPC.
6. The suit came up first before this Court on 17th March, 2009, when the following order was passed: “This suit has been filed on behalf of the plaintiff by her son alleging therein that the plaintiff was an insane lady and an application under Order 32 CPC is accompanied with the suit. However, the plea of insanity taken by the son of the plaintiff in the suit raises a doubt. Moreover, the son of the plaintiff had not filed any petition for appointment of guardian of the plaintiff before any court on the ground of his mother‟s insanity. In these circumstances, I consider that it is necessary to examine her mental condition. List this matter now on 19th March 2009 for appearance of the plaintiff and for recording her statement under Order 10 CPC.”
7. On 19th March, 2009, the plaintiff appeared in person and her statement recorded as under: “Statement under Order 32 CPC of Smt. Shyama Pahwa wife of Late Shri Madan Mohan Pahwa r/o J-12, First Floor, South Extension Part- I, New Delhi-110049. ON SA: Plaintiff appeared in for her examination under Order 32. Plaintiff disclosed her name, her education and her age correctly. She also disclosed that she is living with her son. She disclosed that she sometimes forgets the things. She disclosed that she herself told about the facts of this case to her son as well as to her advocate. Few more questions are being asked to determine the mental status of the plaintiff.
8. The following order was passed on 19th March, 2009: “It is submitted by counsel for the plaintiff that despite the statement made by the plaintiff today in the Court, he would like to pursue the suit in its present form. The property has been valued by the plaintiff at Rs.50 lac. The suit property is 500 sq. yards built up plot in the area of Greater Kailash. To my understanding the value of the property would be much more than Rs.[5] crore. However, counsel for the plaintiff submits that he would amend the valuation as per notified rates of Union of India and shall file notification also. The plaintiff is given liberty to amend the suit regarding valuation and for fixing appropriate court fees. It is submitted by the counsel for the plaintiff that he relies upon a decision of this Court in Saroj Salkan v. Capt. Sanjeev Singh and Ors 155(2008) DLT 300 (DB) saying that the plaintiff was not liable to pay Court fees on ad veloram basis because the plaintiff was a coowner of the property sought to be partitioned and he would be liable to pay the fixed Court fee. The issue qua court fees is left open, to be decided after completion of pleadings. List this matter now on 11th August 2009.”
9. A perusal of the order dated 19th March, 2009 in the suit indicates that this Court, on so examining the plaintiff, was not satisfied that the plaintiff was a person of unsound mind, for the provisions of Order XXXII Rule 15 of the CPC to be applicable or for the suit on the basis of cause of action personal to the plaintiff to be filed by her son as her next friend. This is indicated from this Court asking the counsel for the plaintiff, whether he would want to pursue the suit in the form in which it was filed i.e. not by plaintiff herself but by her son, as her next friend and accompanied with an application under Order XXXII Rule 15 of CPC. The counsel for the plaintiff however insisted on pursuing the suit in the form in which it was filed, probably because without the plaintiff being of unsound mind, there was no cause of action for the plaintiff to sue.
10. Immediately on change of Roster, IA No.5699/2009 was filed by the plaintiff to seek early hearing and which came up before this Court on 29th April, 2009 when the following order was passed: “I.A. No. 5699/2009 This application has been filed by the plaintiff to seek early hearing of the matter. Along with the application the plaintiff has filed amended plaint incorporating a fresh valuation of the suit property. Since, summons have not been issued in the suit, the amended plaint is taken on record. Issue summons to the defendants returnable on 11th May,
2009. Summons be issued through all permitted modes. I.A. No. 3489/2009 Exemption allowed subject to the plaintiff filing the certified copies of the originals within eight weeks. I.A. No. 3487/2009 Issue notice to the defendants returnable on 11th May, 2009. The defendants shall maintain status quo in relation to the title of the suit property till the next date. Compliance of Order 39 Rule 3 CPC be made within three days.”
11. The order dated 29th April, 2009 indicates that this Court, without realising that the suit was filed under Order XXXII Rule 15 of the CPC and that as per the earlier orders, this Court was not satisfied of the maintainability of the suit, issued summons of the suit.
12. The defendants no.1&2 have made Counter Claims in the suit against the plaintiff.
13. The suit and the Counter Claim are since languishing, with issues even having not been framed yet.
14. The plaintiff has since died and has been substituted by her son who had earlier instituted the suit as the next friend of the plaintiff.
15. The application, being IA No.17283/2013 of defendants no.1&2 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) and the application, being IA No.2432/2015 of the plaintiff under Order VI Rule 17 of the CPC were for consideration on 27th November, 2017, when the counsels were heard and granting time as sought by them to, in the course of the day, hand over copies of certain judgments which they sought to rely on, the file was sent to the chamber for passing orders on the said applications.
16. On going through the file, the aforesaid position emerged.
17. In the order dated 27th November, 2017, it was inter alia observed / held as under:
18. On 21st February, 2018, the counsel for the defendants no.1 and 2, on enquiry, whether there is any judgment covering the legal point, relied upon Manthena Krishnam Raju Vs. Dadal Ramanaiah @ Rafiale MANU/AP/0404/2000. However, on request of counsel for the plaintiff, the hearing was adjourned to today.
19. The counsel for defendants no.1 and 2 contends that in accordance with Manthena Krishnam Raju supra, the suit has to be dismissed with liberty to the heirs of the deceased plaintiff to, if so desire, and if so entitled, bring a suit in accordance with law.
20. The counsel for the plaintiff has argued (i) that the dicta aforesaid in Manthena Krishnam Raju supra is not applicable to the facts of the present case, inasmuch as in that case the plaintiff died shortly after the institution of the suit; however, in the present case the plaintiff died after nearly two years of the institution of the suit and after she had been examined by the Court; (ii) that the Court is presumed to have found the plaintiff to be a person of unsound mind before the summons of the suit were ordered to be issued; and, (iii) the defendants, even after service of summons of the suit and till the demise of the plaintiff, did not take any steps for inquiry into the mental status of the plaintiff.
21. In Manthena Krishnam Raju supra, the suit was instituted on 3rd April, 1991 for cancellation of registered Sale Deeds executed by the plaintiffs in favour of the defendants, along with an application under Order XXXII Rule 15 of the CPC to permit the next friend of the plaintiff to file the suit on behalf of the plaintiff; the plaintiff expired on 5th May, 1991 and the legal representatives of the plaintiff were substituted in her place. It was the contention of the defendants therein that since the plaintiff expired, no enquiry as contemplated under Order XXXII Rule 15 of the CPC was possible and the only option left to the Court was to reject the plaint and the legal representatives of the plaintiff could not continue the suit. Per contra, it was the contention of the counsel for the legal representatives of the plaintiff that they could continue the suit and had already been brought on record and the defendants could take all defences which were available to them in law. It was held i) that the plaint had to be returned as no enquiry under Order XXXII Rule 15 CPC was possible; ii) that under Order XXXII Rule 15, enquiry can be dispensed with only in cases where the person is already adjudged as a lunatic or of unsound mind; iii) else, the Court has to conduct an enquiry for the purpose of finding whether the plaintiff suffers from unsoundness of mind or mental infirmity so as to be incapable of protecting his interest; iv) where the plaint is presented on behalf of a person of unsound mind by his next friend, the representation by the next friend does not become effective for the purpose of admitting the plaint and issuing process against the defendant until the stage contemplated by Order XXXII Rule 15 is reached; v) that until the Court finds the plaintiff to be of unsound mind, by conducting an enquiry contemplated by Order XXXII Rule 15, the provisions of Rules 1 to 14 of Order XXXII do not get extended and there is no plaint properly presented so as to commence the proceedings in the suit; vi) that if on conducting the enquiry, the Court comes to the conclusion that the plaintiff is not a person of unsound mind, that will be a valid ground to reject the plaint since the plaint in such a case had been presented by an unauthorized person on behalf of the plaintiff; vii) that if a person is not of unsound mind, then letting another person sue as a next friend on his behalf will be a total deprivation of the liberty of the person concerned to take care of his own interest and amount to foisting on him another person to pursue a litigation which he himself might not have liked; viii) that the Court owes a duty to the person on whose behalf suit is brought by another, to conduct enquiry; ix) that if without conducting any enquiry, permission is granted, the suit is not maintainable as enquiry under Order XXXII Rule 15 is mandatory; x) that if no enquiry as contemplated by Order XXXII Rule 15 is possible, as the plaintiff is no more, the Court will not get any jurisdiction to entertain the suit filed by the next friend on behalf of a dead person; xi) that Order XXXII Rule 15 CPC will not authorize the Court to grant permission to sue by next friend of a dead person – in such circumstances, the suit is defective and not maintainable; xii) that mere impleadment of legal representatives of the plaintiff subsequently will not cure the initial defect of entertaining the suit; and, xiii) reliance was placed on Somnath Dnyanoba Mahapure Vs. Tipanna Ramchandra Jannu AIR 1973 Bom 276 (DB) and Rangaswami Reddi Vs. Gopalaswami Reddiar (1978)
22. Rule 15 of Order XXXII is as under:
23. Supreme Court, in Kasturi Bai Vs Anguri Choudhary (2003) 3 SCC 225 held that where a plea of unsoundness of mind or of any of the party to a litigation being incapable of protecting his / her interest by reason of any mental infirmity is taken, holding of an enquiry is a must. This Court in Shri Jai Prakash Goel supra held that the Court is empowered to appoint a guardian only in the event a person is adjudged to be of unsound mind and / or incapable of protecting his / her interest in a litigation. I also have in Mithilesh Chauhan supra held that a decree against a person of unsound mind and / or who is unable to look after his / her interest is a nullity and no purpose would be served in proceeding with the suit without holding the enquiry. It was further held that such enquiry does not necessarily mean reference to the medical specialist; the trial Court can direct the party to appear before the Court and the Court can on putting questions to the party arrive at a finding as to whether such person is a person of unsound mind or incapable of looking after his / her own interest and that only if the Court after holding such preliminary enquiry is able to reach a definite conclusion as to the mental status of the person is the person concerned to be referred to a medical specialist.
24. As far as the contention of the counsel for the plaintiff, of the dicta in Manthena Krishnam Raju supra being not applicable for the reason of the death of the plaintiff therein being within one month of the institution of the suit, and the death of the plaintiff in the present case being after two years of the institution of the suit is concerned, I am unable to find any merit therein. Merely because the suit remained pending for long would not validate what was invalid on the date of institution.
25. I have next considered the argument of the counsel for the plaintiff, of the Court being presumed to have found the plaintiff to be a person of unsound mind before the summons of the suit were ordered to be issued.
26. When the law i.e. Order XXXII Rule 15 of the CPC entitles the next friend to sue on behalf of the plaintiff only when such plaintiff is „found‟ by the Court, on enquiry, to be incapable, by reason of any mental infirmity, of protecting his / her interest when suing, the Court cannot be „presumed‟ or „deemed‟ to have found so by the mechanical act of issuance of summons of the suit or grant of ex parte ad-interim relief sought.
27. From the observation “It is submitted by counsel for the plaintiff that despite the statement made by the plaintiff today in the Court, he would like to pursue the suit in its present form” in the first paragraph of the order dated 19th March, 2009 supra, it is quite clear that this Court after recording the statement of the plaintiff, was not satisfied that the plaintiff is of unsound mind or incapable of looking after her interest. This is clear from use of the word “despite” therein. Further, in my opinion, the order dated 29th April, 2009 can by no stretch of imagination be read as having found the plaintiff to be incapable by reason of mental infirmity of protecting her own interest. Rather from a reading of the order dated 29th April, 2009 it appears that the Court on that date was not even aware of the suit having been instituted not by the plaintiff but by her next friend, claiming the plaintiff to be suffering from mental infirmity.
28. When a procedural law requires something to be done only if the Court „finds‟ certain thing „on enquiry‟, without a definite finding being returned, that thing cannot be permitted to be done. Though in certain situations, the Court can be presumed or deemed to have acted in accordance with law but in the facts of the present case, since the Court had in the first two orders reproduced above, expressed dissatisfaction with respect to the unsoundness of mind of plaintiff and not issued summons of the suit, no such presumption can be drawn.
29. High Court of Kerala, in Maideen Bava Rawther Vs. John Xavier 1990 SCC OnLine Ker 438, held that when in an application under Order XXXII Rule 15 of the CPC allegation is made that the plaintiff is incapable of managing his affairs on account of insanity, it has to be viewed with all seriousness by the Court and cannot be treated in a cavalier manner; it deserves weighty consideration and only after proper enquiry can the Court come to its conclusion. It was further held that the Court cannot dispense with the judicial enquiry contemplated under Order XXXII Rule 15 of the CPC and cannot infer or assume such claim to be true merely because it is not opposed and cannot shirk from its responsibility.
30. As far as the only other contention of the counsel for the plaintiff, of the defendants having not sought enquiry contemplated by Order XXXII Rule 15 of the CPC is concerned, I may notice that the defendants in their written statement as well as in the application for rejection of plaint took a plea of the suit filed by the son of the plaintiff as next friend of the plaintiff being not maintainable and no enquiry having been conducted. It was for the plaintiff to be cautioned by such objection of the defendants but the plaintiff even then did not choose to approach the Court for conducting an enquiry as required in law and return a finding.
31. Else, I respectfully concur with the reasoning in Manthena Krishnam Raju supra and am of the view that the present suit, though in the name of the plaintiff, but not instituted by the plaintiff and the plaint therein being not signed and verified by the plaintiff, was ineffective till the Court found the son of the plaintiff, who has instituted the suit and signed and verified the plaint as next friend of the plaintiff, to be entitled to do so. Merely because the same has been pending for long and merely because the legal heirs of the plaintiff have been substituted, would not cure the defect in the institution of the suit. The enquiry which the law required to be conducted to validate the suit not instituted by the plaintiff and the plaint wherein was not signed and verified by the plaintiff, is now not possible owing to the demise of the plaintiff.
32. I may in fact mention that the application of the son of the plaintiff for substitution in place of the plaintiff is found to have been allowed on 12th September, 2011 in the absence of the counsel for the defendants no.1 and 2 and without any record of notice thereof having been served on the defendants no.1 and 2.
33. I may also mention that the orders dated 6th January, 2010 and 8th July, 2011 refer to IA No.3488/2009 under Order XXXII Rules 3 and 15 of the CPC read with Section 151 CPC to have been filed on behalf of the plaintiff for appointment of next friend of the plaintiff but no mention thereof is found in any of the earlier orders and no order till then is found to have been made thereon. The said application is also not found on record. However, on 8th July, 2011, the said application was disposed of on the statement of the counsel for the plaintiff that the plaintiff had expired and the said application had become infructuous.
34. I have of my own, also considered allowing the son of the deceased plaintiff to continue the present suit, in his own capacity as the legal heir of a person, who on account of mental status, was not of contracting capacity and treating the suit to have been instituted on the day of his substitution in place of the deceased plaintiff. It is always open to a legal heir of such a person to institute such a suit impugning the contract executed by such a person. However, in the facts of the present case, I am not inclined to allow so, because i) the plaintiff / her son are found to have got summons of the suit issued on 29th April, 2009, without drawing the attention of this Court to the earlier orders and without inviting orders on the application under Order XXXII Rules 3 and 15 of the CPC, thereby attempting to steal a march on the defendants; such conduct disentitles them to exercise of any discretion in their favour; such conduct continued, with the application for substitution having been got allowed without presence of / notice to defendants no.1 and 2 and having the application under Order XXXII Rules 3 and 15 disposed of as infructuous, thereby indicating giving up of the claim for having the same adjudicated; ii) the suit, though has remained pending for long, but is still at nascent stage, with the son of deceased plaintiff wanting to amend the plaint, whereafter pleadings will have to be completed; it is thus felt that no substantive proceedings have taken place which will need to be replicated in fresh suit; and, iii) the pleadings in this suit and Counter Claims are already in a mess and on which comment has already been made in order dated 27th November, 2017; it is hoped that if crisp pleadings are made, adjudication will be expedited.
35. The counsel for the plaintiff then states that liberty be granted to the son of the plaintiff to file a fresh suit for the same reliefs.
36. The counsel for the defendants no.1 and 2 states that it be clarified thatalldefencesavailable shall remain open to the defendants.
37. The suit is thus dismissed with liberty aforesaid to the parties.
38. The counsel for the defendants no.1 and 2 states that in view of the above, he withdraws Counter Claims No.81/2009 and 40/2010 with liberty to sue afresh in accordance with law if need and / or cause of action therefor arises and / or to take the pleas as taken therein in the defence to any fresh proceedings filed by the son of the plaintiff.
39. TheCounterClaimsaredismissedaswithdrawnwithlibertyaforesaid.
40. The counsel for the defendants no.1 and 2 also presses for costs.
41. However in the aforesaid facts, no costs.
RAJIV SAHAI ENDLAW, J. MARCH 13, 2017 „SRwt/gsr‟