SUNIL SARDANA Vs. RENU RAWAL

JUDGEMENT

(1.) PETITIONER /plaintiff has approached this Court praying for quashing of order dated November 24, 2003, passed by the Civil Judge (Senior Division), Gurgaon whereby application filed by the brother of respondent/defendant under Order 32 Rule 15 of the Code of Civil Procedure (for short "the Code"), was accepted. It was held that respondent/defendant was suffering from unsoundness of mind, resultantly was unable to protect her own interest, while defending the suit. Brother of the respondent-defendant, namely, Yogesh Rawal was appointed as guardian to contest the suit on behalf of respondent/defendant.

(2.) BRIEFLY the facts of the case, are that the respondent/defendant entered into an agreement to sell plot No. A-538-B measuring 350 sq. yards situated in Sushant Lok, Gurgaon. The agreement to sell was executed on February 2, 1994 for a total consideration of Rs. 4,50,000/-. A sum of Rs. 25,000/- was paid as earnest money at the time of execution of the agreement, partly in cash and partly by cheque. In the first week of March, petitioner/plaintiff requested the respondent/defendant to get the plot in question registered in his name. Thereafter, on March 16, 1994 a public notice was issued in the Hindustan Times by the petitioner/plaintiff to the effect that plot in question was agreed to be sold by the respondent/defendant to the petitioner/plaintiff and anybody dealing in the same would be doing so at his own risk and responsibility. On March 21, 1994, petitioner/plaintiff served a legal notice on the respondent/defendant requesting her to execute the sale deed after getting the income tax clearance certificate within fifteen days from the date of notice. The same was duly served upon the respondent/defendant. However, sale deed was not executed. Under the circumstances, petitioner/plaintiff filed civil suit for possession by way of specific performance of the agreement to sell dated February 2, 1994. Notice of the suit was served upon the respondent/defendant. Thereafter, on October 10, 1994, Yogesh Rawal brother of respondent/plaintiff filed an application under Order 32 Rule 7 read with 151 of the Code for substituting his name as against the respondent/defendant. It was, inter-alia, contended in the application that the respondent/defendant was sick and was in mental depression. She was suffering from disturbed state of mind for the last more than one year. The allegations made by Yogesh Rawal were denied by the petitioner/plaintiff in reply filed thereto. The application was withdrawn by Yogesh Rawal and thereafter another application was filed by him under Order 32 Rule 15 of the Code for his appointment as guardian ad-litem on the ground that respondent- defendant was sick for the last more than two years. In reply to this application, petitioner/plaintiff refuted the allegations made therein. Learned trial Court framed issues and after recording the evidence of the parties accepted the application made by Yogesh Rawal by permitting him to represent the respondent/defendant to protect her interest. It is this order, which is impugned in the present revision petition.

(3.) SHRI O.P. Goyal learned Senior Counsel appearing for the petitioner/plaintiff submitted that due procedure for declaring the respondent/defendant of unsound mind has not been followed by the Court below as what to talk of the other sufficient evidence on record even the respondent/defendant was not called in person in the Court for recording her statement. There is otherwise also contradictions in the evidence led by the brother of the respondent/defendant to prove that respondent/defendant was of unsound mind. The only object was to come out of the agreement to sell for the simple reason that after respondent-defendant had entered into agreement to sell, the prices of the property have increased. He further relied upon the judgments in Duvvuri Rami Reddi v. DuvvuduPapi Reddi and others, AIR 1963 Andhra Pradesh 160, Somnath v. Tipanna Ramchandra Jannu, AIR 1973 Bombay 276 and Asha Rani v. Amrat Lal, AIR 1977 Punjab and Haryana 28. Accordingly, the prayer made is that the order passed by the Court below deserves to be set aside.