- (1.) SUDHIR Narain, J. This writ peti tion is directed against the order dated 30-7-1998, rejecting the application filed on behalf of the petitioner to appoint next friend of the petitioner as he is of unsound mind and the order dated 21-10-1998 dis missing the Revision against the aforesaid order.
(2.) BRIEFLY stated the facts are that respondent No. 3 filed a suit for recovery of arrears of rent, ejectment and damages against the petitioner, Khokha Rai. The petitioner filed a written statement in the suit admitting various facts stated in the plaint. Subsequently he filed an applica tion alleging that he had engaged Ram Bahadur Singh, Advocate who colluded with the plaintiff and got a wrong written- statement filed jeopardising his interest. He is almost an illiterate person and he only puts his signatures on the papers. The trial Court rejected this application dis believing his version. The revision preferred against this order was dismissed, e filed a writ Petition in the High Court which was also dismissed. The wife of the petitioner, there after, filed an application under Order XXXII, Rule 15, C. P. C. stating therein that her husband Khokha Rai, was totally upset by the fact that he had admitted certain facts in the written-statement and, there fore, the suit may be decreed and he will be evicted from the disputed premises. He developed mental infirmity and became of an unsound mind. It was prayed that an enquiry may be conducted in the matter and after coming to the conclusion that the defendant Khokha Rai is incapable of protecting his interest in the suit by reason of his mental infirmity, she may be ap pointed as a guardian and next friend of her husband. She filed an affidavit in sup port of the application. The plaintiff-respondent filed counter-affidavit. The trial Court, after taking into consideration the version of the petitioner, rejected it on 30-7-1998 on the finding that the applicant failed to establish a prima facie case that her husband was mentally infirm. The revision filed against the aforesaid order has been dismissed by respondent No. 1 on 21-10-1998. The main thrust of the submissions of the learned Counsel for the petitioner is that the trial Court should have made a preliminary enquiry and given an oppor tunity to adduce the evidence to prove that the defendant was mentally infirm and of unsound mind.
(3.) THE petitioner had filed an af fidavit in support of her version. She had also filed medical prescriptions of one Dr. A. K. Tandon. In the Revision it is alleged that she filed three papers, first medical prescriptions of S. R. N. Medical College dated 1-9-1998 about the medical treat ment of Dr. A. K. Tandon, the second prescription of the same date about his heart ailment under the treatment of Dr. D. K. Agrawal and third one was the leaflet of E. C. G. in respect of the heart of the defendant. THE petitioner did not file any certificate from the Doctor who is alleged to have treated the petitioner to show that he was of unsound mind. THE prescriptions itself did not show that the defendant was either of unsound mind or mentally infirm. THE application can be decided on the basis of the affidavit filed by a party as contemplated under Order XIX, Rule 1, CPC. It was for the applicant to establish prima facie that the defendant was of un sound mind. There is nothing to show that the plaintiff filed an application to lead any further evidence and such application was rejected by th4 Court. The Court itself cannot ask a party to lead evidence. It was for the applicant to lead evidence in sup port of her version. An enquiry under Order XXXII, Rule 15, CPC is to be made by the Court only when the material evidence is produced before it. There is nothing to show that the Court had shut the applicant to lead evidence.;