Smt Shivdulari v. Sudheer Kumar and 4 Others

Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 6855 of 2023 Petitioner :- Smt Shivdulari Respondent :- Sudheer Kumar And 4 Others Counsel for Petitioner :- Dalvir Singh,Rahul Pandey Counsel for Respondent :- Amit Kumar Srivastava Hon'ble Jayant Banerji,J.

¶1Heard Shri Rahul Pandey, Advocate appearing for the petitioner and Shri Amit Kumar Srivastava, Advocate appearing for the respondent no.2.

¶2This petition has been filed seeking to set aside the orders dated

28.04.2023 and 05.05.2023 as well as the decree dated 08.05.2023 passed by the court of the Civil Judge, Fatehpur in Original Suit No.2 of 2023 (Smt. Shivdulari vs. Sudheer Kumar & Ors.).

¶3It appears that a suit was filed in the name of the petitioner by one Raju Lodhi claiming himself to be 'Vaad Mitra' (next friend) for cancellation of a sale deed dated 17.11.2022 as well as for injunction. In the aforesaid suit, an application dated 07.02.2023 was filed under Order XXIII, Rule 1, C.P.C. by Smt. Shivdulari seeking to withdraw the suit on the ground that she had voluntarily and of her own freewill and accord executed the sale-deed sought to be challenged in the suit. Shivdulari had appeared in person in the suit before the trial court on 07.02.2023 on which date the Judge questioned her and passed the order dated

07.02.2023 which is as follows:- "न्यायालय सििቭिविल सजज स(ििቭ०डिडि०ड) सफतेहपुर। मूलविाद सिቭं०ड-02/2023 िशिविदुलारी-बनाम-सिቭुधीर सकुमार सआदिद िशिविदुलारी सविािदनी सकी सओर सिቭे सविाद सविापिቭी सका स्ቚा०ड सप्ቔ सिदया सिशिविदुलारी सस्वियं न्यायालय समे सउपतኣस्थित। सन्यायालय स्ቛारा सिशिविदुलारी सिቭे स्ቚस्तुत सविाद सके सबारे समे जानकारी सकी सगयी। सिशिवि सदुलारी स्ቛारा सकथिन समेरी सउ्቞ सलगभग स60 सविषर सहै। समेरा सकोई केिቭ सइिቭ सन्यायालय समे सदािखिल सनही सहै। सजो सयह समुकदमा सहै सउिቭे समै सविापिቭ सलेना चाहती सहूँ। समेने सअपना सबयान सिबना सिकिቭी सदबावि सके सदे सरही सहूँ। विािदनी सके सबोलन सपर सउ्ሹ सतथ्य समेरे स्ቛारा सअंिकत सिकया सगया।"

¶4The so-called 'next friend' filed an objection dated 23.02.2023 to the application dated 07.02.2023 stating that Shivdulari is 'फातरुल सअक्ल' (mentally unsound) and she is not able to look after her interest and it is her 'next friend', Raju Lodhi, who manages her affairs and looks after her well-being and, therefore, the application moved by her is not maintainable.

¶5From the record of this petition, it further appears that an application dated 15.04.2023 was filed by aforesaid Raju Lodhi stating that Shivdhulari being of unsound mind should be medically checked by a 'medical panel'. On 15.04.2023, the trial court recorded the statement of the plaintiff-Shivdulari. A copy of the proceedings of 15.04.2023 is enclosed at page 64/65 of the petition which is as follows"- "विाद सिቭंख्या स02/2023

15.4.2023 विाद सपुकारा सगया। सउभय सप्ቌ सके सिवि्ቛान सअिधवि्ሹा सविािदनी स्ቦ ीमती सिशिविदुलारी उप०ड। सविाद सिम्ቔ सरानू सलोधी सउप०ड। सिविप्ቌीगण सिቭतीशि, सिमिथिलेशि, स्ቚेमचन्द सउप०ड। स्ቚस्तुत मामले समे सविाद सिम्ቔ सकी सओर सिቭे स30 ग स्ቚा०ड सप्ቔ स्ቦ ीमती सिशिविदुलारी सका सMedical स Checkup कराने सके सआदशिय सिቭे सिदया सगया। सविादी सिशिविदुलारी सके सअिध०ड सकी सओर सिቭे आदपिቈኌ सकी सगयी। स30 ग सपर सउभय सप्ቌ सको सिቭुना सगया। प्ቔाविली सविाद सविापिቭी स्ቚा०ड सप्ቔ स15 क सके सिनस्तारण सपर सआदज सन्याया०ड स्ቛारा स्ቦीमती िशिविदुलारी सका सपुनः सबयान सअंिकत सिकया सजा सरहा सहै। बयान सविािदनी सिशिविदुलारी स िशिवि सदुलारी सउ्቞ स80 सविषर सलगभग सपित सस्वि०ड सराम सऔतार सपता- सरानी सकालोनी, सफतेहपुर। िशिविदुलारी सका सनाम सवि सपता सिलखिे सजाने सके सउपरान्त सिशिविदुलारी स्ቛारा सकथिन सिकया िक समेरे सचार सलड़के सिजनके सनाम सहिरश्चन्द,राजू, स्ቚेम सचन्द सवि सराम सििቭंह सहै। समेरी सएक सलड़की जमुना सहै। समैने सकोई समुकदमा सदायर सनही सिकया सहै। समैने सप्लाट सिቭुधीर सको सबेचा सथिा। सिकतने समे बेचा सथिा। सबैनामे समे सिलखिा सहै। सजो सिलखिा सहै, सविही सरूपया सिमला सथिा। समै सपढी सिलखिी सनही सहुयी। मैने सअपनी सस्वितं्ቔ सइच्छा सिቭे सप्लाट सिቭुधीर सको सबेचा सथिा। समैने सिबना सिकिቭी सदबावि सके सप्लाट सबेचा थिा। समै सरिजस्टरी सऑफिफिቭ सिቭुधीर सके सिቭाथि सगयी सथिी। सिቭुधीर सके सअलाविा सऔर सकोई सिቭाथि सनही गया। सप्लाट सजो सबेचा सथिा सविो सअम्बेडिकर सस्कूल सके सबगल समे सहै, सउिቭी सको सबेचा सथिा। समै सअभी अपने सबेटे स्ቚेमचन्द सके सिቭाथि सरहती सहूँ। समै सअपना सआदधार सकाडिर सआदज सनही सलाई सहूँ। सहाँ समै जानती सहूँ सिक समेरे सलड़के सराजू सलोधी सने समेरे सनाम सिቭे समुकदमा सयहाँ सदायर सिकया सहै। समै सअपने बच्चो सिቭे सकह सरही सथिी,अपना-अपना सिहस्िቭा सले सलो, सझगड़ा समत सकरो। सप्लाट सजो सबेचा सथिा, उिቭका सरूपया समेरे सखिाते समे सगया सथिा। समेरा सखिाता सबैक समे सहै, सबैक सस्टेशिन सके सआदगे सहै। समुझे सबैक का सनाम सनही सयाद सहै। समैने स5 सिቭे स6 महीने सपहले सप्लाट सिቭुधीर सको सबेचा सथिा। मुझे सपािलशि सिगर सगयी सथिी, समुझे सउिቭी सकी सदविा सचल सरही सहै। समैने सअपना सबयान सिबना िकिቭी सदबावि सके सआदज सिदया सहै। समै सअपनी समजी सिቭे सप्लाट सबेचा सथिा। स - स Court Observation्ቦ ीमती सिशिवि सदुलारी सने सन्याया०ड समे सउपतኣस्थित सहोकर सखिड़े सरहकर आदज सयह सबयान सअंिकत सकराया सगया सहै। 30 ग सवि स13 क सपर सिቭुना सगया। विास्ते सिन०ड सिद०ड स28.4.2023 सपेशि सहो। 15/4/2023"

¶6By the impugned order dated 28.04.2023, the application filed by the 'next friend', Raju Lodhi, for getting the medical checkup done of Shivdulari was dismissed on the ground that there are no documents in support of the application. The contention of the plaintiff-Shivdulari was also considered by the court in which she had stated that the suit has been wrongly filed by Raju Lodhi whereas Shivdulari had executed a sale-deed in favour of the defendant nos. 1 and 2 in her full senses and in the full knowledge of all her sons.

¶7By the impugned order dated 05.05.2023, the application moved by Shivdulari for withdrawal of the suit and the objection filed by Raju Lodhi on the application were considered and the application for withdrawal was allowed. While allowing the application for withdrawal of suit, the trial court noticed the statements recorded by the court on 07.02.2023 and

15.04.2023 and referred to her statement in which she had said that she has made the statement before the court without any pressure and that she had once suffered from paralysis and she is taking medication for the same. Under the circumstances, the application was allowed.

¶8The contention of the learned counsel for the petitioner is that once an application was moved by the 'next friend' for medical examination of Shivdulari, the trial court ought to have referred the matter to a panel of medical practitioners for evaluation. It is contended that, therefore, the orders of the trial court cannot be sustained. In support of this contention, the learned counsel has relied upon a judgment of the Supreme Court in the case of Kasturi Bai & Ors. v. Anguri Chaudhary1. Further referred to are judgments of this Court in the case of Rishipal Singh & Ors. v. Balram Singh and Anr.2 and of the Orissa High Court in Tirtha Pradhan vs. Balabhadra Pradhan3.

¶9In the judgment of the Supreme Court in Kasturi Bai (supra), under challenge before it was an order passed by a Division Bench of the High Court whereby it refused to entertain an application filed by the appellants under Section 151 C.P.C. for recalling an order passed by a learned Single Judge of the said High Court which, in turn, arose out of an order passed by the Additional District Judge dismissing the application filed by the respondents therein under Order XXXII, Rule 15 C.P.C. The appellant no.1 had alleged in the application before the Additional District Judge (A.D.J.) that she had lost her ability to understand and is not capable to give instructions to her lawyer or anybody else relating to the suit and, therefore, a prayer was made by her to be summoned in 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 application was dismissed by the A.D.J. Thereafter, a revision was filed before the High Court which was allowed holding that appointment of a guardian would not cause any prejudice to either parties. The appellants filed an application for recalling the order of the Single Judge on the ground that notices were not served upon them. However, that application, instead of being placed before the Single Judge who had disposed of the civil revision, was placed before a Division Bench which considered the said application to be an appeal against the order of the Single Judge and dismissed the same by the impugned order holding that the High Court had committed a manifest error in treating the application for recalling as an appeal against the order passed by the learned Single Judge, even though no intra-court appeal lay before a Division Bench. The Supreme Court observed as follows:-

(2003) 3 SCC 225 2020 (6) ADJ 336 AIR 1993 ORISSA 50 "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 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 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.

¶12The 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."

¶10In my opinion, the aforesaid judgment of the Supreme Court is of no help to the petitioner. In the instant case, twice over the trial court has examined the plaintiff, Shivdulari, and has come to a conclusion that the application for her mental examination and the application for withdrawal are to be rejected and allowed, respectively.

¶11Learned counsel for the petitioner has referred to paragraph 32, 47, 48, 52 and 53 of the judgment in Rishipal Singh (supra). Paragraph 32 is a narration of the substantial questions of law in the second appeal. Paragraph 47 is a narration of the provisions of the Order XXXII of the CPC. Paragraph 48 contains the narration of the statement of the person who was said to be mentally unsound. In paragraphs 52, 53 of the judgment, the Court has observed that it was the bounded duty of the trial court to undertake an inquiry contemplated under Order XXXII Rule 15 CPC and record a finding. Though the statement of the person stated to be of unsound mind was recorded on 6.8.1997, it was a statement recorded by the trial court pursuant to an examination under Order X Rule 2 CPC for purpose of conducting an inquiry under Order XXXII Rule 15 CPC. The Court observed that the inquiry remained inconclusive as is reflected from order dated 6.8.1997. It was noticed that the first appellate court had misdirected itself in holding that the statement is inadmissible in evidence and is defective. This Court had observed that there was lack of proper inquiry and a finding of the court thereon, as envisaged under Order XXXII Rule 15 CPC.

¶12As noticed above, in the instant petition, such a situation does not exist. In the present case, albeit the statement was recorded on 07.02.2023, that statement was made on an application filed by the plaintiff-Shivdulari for withdrawal of the suit. Thereafter, in view of the objection filed by the 'next friend' and the application filed by him for getting the plaintiff medically examined, the court proceeded to make an inquiry on

15.04.2023 and the statement of the plaintiff-Shivdulari was recorded. The examination of the plaintiff-Shivdulari was done on 07.02.2023, and the inquiry as contemplated under Order XXXII Rule 15 CPC was done on

15.04.2023. The impugned order dated 05.05.2023 was, thereafter, passed recording a categorical finding by the trial court in view of the statement of Shivdulari and the inquiry.

¶13The facts in the case of Tirtha Pradhan (supra) are different from the case in hands and, therefore, that judgment is not applicable.

¶14I have perused the proceedings of 07.02.2023 and 15.04.2023 that have been enclosed with the record. In my opinion, under the circumstances, no interference in the orders of the trial court dated

28.04.2023 and 05.05.2023 is warranted.

¶15The petition is, therefore, dismissed. Order Date : 12.10.2023 SK (Jayant Banerji, J) High Court of Judicature at Allahabad