Holding

The Division Bench erred in treating the application for recalling as an appeal; no intra‑court appeal existed, and the matter must be remitted to the trial court to conduct an inquiry under Order 32 Rule 15 before any guardian can be appointed.

Summary

The plaintiff filed a suit for partition and sought the appointment of a guardian for the 87‑year‑old defendant under Order 32 Rule 15 of the CPC, alleging mental infirmity. The trial court dismissed the application, prompting a revision before a Single Judge of the High Court, who set aside the trial court order but did not direct an inquiry into the defendant's capacity. The appellants then applied to recall that order, but the application was placed before a Division Bench, which treated it as an appeal and dismissed it. The Supreme Court held that no intra‑court appeal lay before the Division Bench and that the Single Judge’s order merged with the Division Bench order, rendering the latter’s treatment a manifest error. It further observed that the High Court could only direct the trial court to hold an inquiry under Order 32 Rule 15 before appointing a guardian. Consequently, the Supreme Court set aside the impugned judgments and remitted the matter to the trial court for fresh consideration, allowing the appeal.

Issues considered

Whether an order passed by a Single Judge exercising revisional jurisdiction can be appealed before a Division Bench of the same High Court.
Whether the High Court can set aside a trial court’s order under Order 32 Rule 15 without first directing an inquiry into the alleged mental infirmity.
Whether the Single Judge committed a jurisdictional error by appointing a guardian without such an inquiry.

Legislation cited

Code of Civil Procedure, 1908s. Order 32 Rule 15, s. Section 115, s. Section 151 B

Subjects

guardian appointmentmental infirmityOrder 32 Rule 15revision jurisdictionintra‑court appealcivil procedure

Judgment

A KASTURI BAI AND ORS. .,...__
v.
ANGURICHAUDHARY

FEBRUARY 5, 2003

B [S.B. SINHA AND AR. LAKSHMANAN, JJ.]
Jr ~

"~
Code of Civil Procedure, 1908:

Order 32, Rule 15-Appointment of guardian-Suit for partition-
c Plaintiff filing application for appointment of guardian to defend one of
defendant aged 87 years-Application rejected by trial court-Revision-
-...,
Allowed by Single Judge of High Court-Application for recalling order of
Single Judge-Treated as appeal by Division Bench and rejected-Held, High
Court, while setting aside order of trial court, could only issue a direction to
trial court to hold an inquiry so as to enable it to arrive at a finding as to
D
whether defendant was incapable of protecting her interest by reason of any
mental infirmity or not-As no such inquiry was held, Single Judge committed
/ a jurisdictional error in passing the order which the Division Bench upheld- ...f., ..-
Matter remitted to trial court for consideration strictly in terms of Order 32,
rule 15.
E
S. I I 5-0rder passed by Single Judge of High Court in revision-
Application/or recalling the order-Treated by Division Bench as appeal and
rejected-Held, Division Bench of High Court committed a manifest error in
treating the application as an appeal-No intra court appeal lay before a
Division Bench as the order was passed by Single Judge in exercise ofrevisional .....
F jurisdiction-Appeal-Intra court appeal.

CIVIL APPELLATE JURISDICTION Civil Appeal No. 818 of
2001.
~·.,....

From the Judgment and Order dated 11.08.2000 in MCC 482/99 of the
G High Court of M.P. at Jabalpur.

Gaurav Jain and Ms. Abha Jain, for the Appellants. +
...
B.S. Banthia, for the Respondent.

H 892
KASTURI BAI v. ANGURI CHAUDHARY 893
The following Order of the Court was delivered A
Th is appeal is directed against a judgment and order dated 11.8.2000
passed by a Division Bench of the Madhya Pradesh High Court at Jabalpur
in MCC. No. 482 of 1999 whereby and whereunder it refused to entertain an
application filed by the appellants herein purporting to be under Section 151 B
of the Code of Civil Procedure, 1908 (for short 'C.P.C. ') for recalling of an
order passed by a learned Single Judge of the said Court dated 5.5.1999
passed in Civil Revision No. 2761 of 1998 which in turn arose out of an
order dated 3.11.1998 passed by the Additional District Judge, Shahdol,
Madhya Pradesh in Civil Suit No. 2-A of 1993 dismissing an application
filed by the respondent herein .under Order 32 Rule 15, C.P.C. C
The plaintiff-respondent filed a suit against the appellant herein for
partition of certain immovable properties. The appellant No. I herein at the
relevant point ohime was aged 87. Alleging inter alia that she had lost her
ability to understand and further is not capable to give instructions to her D
lawyer or anybody else relating to the said suit, a prayer was made by the
respondent herein that she be summoned in the 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 learned trial Judge by reason of the order dated 3.11.1998 dismissed E
the said application stating

" .... But in the verification para of her affidavit Anguri Chaudhary
has verified para 1-3 and 4 of the affidavit on the basis of her personal
knowledge and para 2 on the basis of knowledge received from her F
relations and known persons. But Anguri Chaudhary has neither
mentioned the names of her relations and known persons nor disclosed
the time and place of receiving the knowledge from them. No
explanation has been given for inordinate delay of 49 months in
bringing the fact of forged signature of Kasturibai on her written
statement filed on 31.8.94. In this case Kasturibai is defendant No. l G
but in I.A. No. 17 and affidavit in support she has been referred as
"defendant No.3" and." defendant No. 3 Kasturibai". The affidavit
of Anguribai filed in support of IA. No.17 is not reliable in these
circumstances. Therefore IA. No. 17 is dismissed."
H
894 SUPREME COURT REPORTS (2003] I S.C.R.

A Questioning the said order, the respondent herein filed a revision
application in terms of Section 115 ofC.P.C. before the High Court. The said +
application was marked as Civil Revision No.2761 of 1998. The High Court
by reason of its order dated 5.5.1999 allowed the revision application directing

" ..... The applicant/plaintiff has filed the instant Civil Suit against the
B non-applicants/defendants for partition, possession and rendition of
accounts. The non-applicant No. I is old lady of 87 years of age and
she has developed forgetfulness. Therefore, the applicant had made
an application under Order 32 Rule 15. CPC, for appointment of a
guardian for defending her in the suit. The appointment of guardian
c would not cause any prejudice to either parties. The trial Court acted
with material irregularity in rejecting the application of the applicant
under Order 32, Rule 15 CPC. The impugned order, therefore cannot
be sustained. Accordingly it is set aside and in the result, the revision
succeeds and is allowed."
D The appellants herein filed an application for recalling of the said order,
inter alia, on the ground that notices upon them were not served. Curiously
enough, the said application, instead of being placed before the learned Single
Judge who had disposed of the civil revision application, was placed before
a Division Bench. The Division Bench considered said application to be an
E appeal against the order of the learned Single Judge and dismissed the same
by reason of the impugned order.

Shri Gaurav Jain, the learned counsel appearing on behalf of the
appellants has raised a short question in support of this appeal . The learned
F counsel would urge that having regard to the provisions contained in Order
32 Rule 15, C.P.C., the learned Single Judge could not have directed that a
guardian be appointed for the respondent herein although the learned trial
court did not make an inquiry in that behalf as is required in terms of Order
32 Rule 15, C.P.C.

G Shri B.S. Banthia, the learned counsel appearing on behalf of the
respondent, on the other hand, would contend that as the appellants herein
had not questioned in this appeal the aforementioned Order 'dated 5.5.1999,
this appeal is not maintainable. -t'

H Having heard the learned counsel for the parties, we are of the opinion
KASTURI BAI v. ANGURI CHAUDHARY 895
that the Division Bench of the High Court committed a manifest error in A
_. treating the application for recalling, as an appeal against the order passed by
the learned Single Judge. No intra court appeal lay before a Division Bench
against the order dated 5.5. I 999 as the same was passed by the High Court
in exercise of its revisional jurisdiction.

Shri Jain, therefore, has rightly submitted that the order of the learned B
·~ Single judge must be held to have merged with the order of the Division
Bench.

Order 32 Rule 15, C.P.C. reads thus:

"15. Rules I to 14 (except rule 2A) to apply to persons of unsound C
mind - Rules I 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 D
or being sued."

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 E
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
No. I 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.
F
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. G
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.

For the reasons aforementioned, the impugned judgments are set aside
and the matter is directed to be remitted to the learned trial Judge for H
896 SUPREME COURT REPORTS (2003) I S.C.R.

A consideration of the matter afresh strictly in terms of Order 32 Rule 15 of the
Code of Civil Procedure as also in the light of the observations made +
herein before.

This appeal is, thus, allowed. However, in the facts and circumstances
of the case, there shall be no order as to costs.
B
R.P. Appeal allowed. >r