SUDHENDU NATH MALLICK,J. - (1.) THE instant revisional application under Section 115 of the Code of Civil Procedure has been preferred by the defendant/petitioner against the order No. 113 dated 23.6.93 passed by the learned Munsif, 5th Court, Alipore in Title Suit No. 411 of 1978 rejecting the defendant's application under Order 32 Rule 15 redd with Section 115 of the Code of Civil Procedure for holding an enquiry about the mental infirmity of the plaintiff/opposite party No. 4 and after such enquiry to appoint a guardian to represent his interest in the suit if on such enquiry the said plaintiff No. 4 is found to be mentally infirm.
(2.) IT appears from the impugned order that the learned Trial Judge in course of holding an enquiry as proposed under Order 32 Rule 15 of the Civil Procedure Code regarding the alleged mental infirmity of the said plaintiff No. 4 examined him personally by putting certain questions. After such examination by the Court the learned Trial Judge was satisfied that the said plaintiff/opposite party No. 4 gave rational answers to the questions put by the Court and as such was of opinion that the said plaintiff/opposite party No. 4 was not incapable of protecting his interest in the aforesaid suit by reasons of alleged infirmity. The learned Trial Judge also took note of the fact that there was no document to show that the said plaintiff No. 4 was suffering from any sort of insanity. It has also been found from the impugned order that after the plaintiff No. 4 was examined by the learned Trial Judge, the learned lawyer for the defendant had expressed his intention to examine the said plaintiff No. 4 which was refused by the Court. Mr. Basu Chowdhury, the learned Advocate appearing for the petitioner has submitted that the Court below should have allowed the learned Advocate appearing for the defendant to cross-examine the plaintiff No. 4 to prove that he was insane. But I am unable to accept such contention. The Judge's power to put questions to a party or to any witness has been provided under Section 165 of the Evidence Act. Section 165 provides, inter alia, as follows :- "The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing and neither the parties nor their agents shall entitled to make any objection to any such question or order, nor without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question. Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved."
(3.) IT is quite clear from the above provision that any party can cross- examine any witness so questioned by the Court but this right of cross- examination is not given when the Judge examines any party in terms of the above provisions of Section 165.;