T.C. Das, J.
1. This revision petition is projected against the judgment and order dated 25-4-87 passsed by the learned Additional District Judge, Dibrugarh in title Appeal No. 1 of 1986 dismissing the appeal of the petitioner and upholding the judgment and decree passed by the learned Assistant District Judge in Title Suit. No. 13 of 1985. It appears that this is the second time that the petitioner has approached this Court with this revision petition. The facts leading to this petition may briefly be stated hereunder.
2. That the petitioner has been in occupation of the premises belonging to the opposite party as a monthly tenant according to English calendar month under a registered deed of lease commencing with effect from 1-4-84 to 31-3-87. The rent was fixed at Rs. 550/- per month. Though the petitioner paid rent for few months, he defaulted to pay rent to the plaintiff since Sept., 1984. The plaintiff-opposite party required the premises bona fide for his own use and occupation and as the petitioner was a defaulter in payment of rent a notice was issued asking him to vacate the premises and to clear up all arrear dues. The petitioner having failed to comply with the terms of the notice, the opposite party as plaintiff brought the suit in the Court of learned Assistant District Judge, Dibrugarh against tbe petitioner as defendant for his eviction and for realisation of an amount of Rs. 3,430/- as arrear rent and compensation. The plaintiff also prayed for recovery of futurc compensation at the rate of Rs. 30/- per day since the date of filing of the suit till the possession of the suit premises is recovered. The notice of the suit was served upon the defendant. But the defendant though entered appearance prayed for time to file written statement and the learned trial Court allowed time on several occasions. As the defendant did not file written statement in spite of allowing sufficient time by the Court to file his written statement, thesuit proceeded ex partc against him under the provisions of Order 8, Rule 10 of the C.P.C. The petitioner thereafter made a prayer in the learned trial Court to vacate the ex parte order and to allow him to file written statement, but that prayer was rejected bv the learned trial Court on the ground that in spite of affording several chances to the defendant he having failed to file written statement no further prayer for allowing time could be granted. Thereafter, the defendant (petitioner herein), approached this Court with a revision petition against the order of the learned trial Court.rejecting his prayer for allowing time to file written state-ment. The said petition was numbered as Civil Revision No. 10 of 1986 which was disposed of on 21-1-86. This Court while rendering Order dt. 21-1-86 set aside the order of the learned trial Court and petitioner was allowed to file written statement subject to payment of cost of Rs. 50/-. The relevant portion of the order passed by this Court may be quoted herein below :--
'..... In this view of the matter, the Order dt, 3-1-86 passed by the learned Asstt. Dist. Judge in T.S. 13/85 is set aside and the petitioner is allowed lo file written statement subject to payment of costs of Rs. 50/-. Mr. Birmiwal submits that he may be given 2 (two) months time for filing written statement on the ground that his client has fallen sick. Accordingly, the petitioner is allowed to file written statement on or before 21-3-86. No further adjournment will be allowed.'
The aforesaid order is very clear that a last chance was given to the petitioner to file written statement within the time-bound period i.e. on or before 21-3-86. It was also directed that no further adjournment would be allowed. Therefore, on bare perusal of the order of this Court it appears that in the event of failure of the defendant to file the written statement within the period specified in the order, the plaintiff would be at liberty to proceed ex parte against the defendant. When the case was taken up by the learned trial Court after the aforesaid order of this Court, the defendant again failed to file written statement and a petition was filed on behalf of the defendant informing the Court that the defendant had been suffering from mental disorder since sometime past and he had become unable due to 'unsoundness of mind/mental infirmity' to protect his interest. A prayer was made to the Court to adjudge the defendant as incapable to protect his interest under the provisions of Order 32, Rule 15 of the C.P.C. The aforesaid petition was filed on 21-3-86 i.e. the last date allowed by this Court to file written statement. The . learned trial Court considered the aforesaid petition and by its Order dt. 21-3-86 held that there was no mention in the order of this Court about mental illness of the defendant and it was for the first time that the defendant advanced that plea only to take time for filing written statement. Therefore, the learned trial Court did not accept the cause as shown in the petition praying for time to file written statement and rejected it. Thereafter the learned trial Court proceed with the case under Order 8, Rule 10 of the C.P.C. and passed the ex parte decree on 23-3-86 after examining the plaintiff. The learned trial Court decreed the suit of the plaintiff for recovery of khas possession by evicting the defendant from the suit premises and also for recovery of arrear rent and compensation as claimed by the plaintiff in the plaint. The aforesaid decree was assailed by the defendant before the learned Additional District Judge, Dibrugarh being the first appellate Court. The learned appellate Court heard the learned Counsel of the parties and considered all the materials available on record including the contentions raised by the defendant in his petition and also the medical certificate filed in support of his contention and after considering all the materials on record dismissed the appeal by its judgment and deaee dt. 30-4-87 dismissed the appeal. Hence this revision petition.
3. The revision petitioner has assailed the judgment and decree mainly on two grounds. They are-- (1) tha, both the Courts below failed to consider the fact that the defendant was suffering from unsoundness of mind and that he was unable to protect his own interest in this suit. Therefore, it was incumbent on the part of the Courts below to make an enquiry as to the mental illness of defendant as prescribed under Order 32, Rule 15 of the C.P.C. and to pass necessary orders to appoint a guardian to contest the suit on behalf of the defendant; and (2) that both the Courts below passed the decree of eviction without any material evidence on record to support the contentions of the plaintiff as made in the plaint.
4. I have heard Mr. P. K. Goswami, learned Counsel appearing on behalf of the petitioner as well as Mr. D. N. Barua, learned Counsel appearing on behalf of the opposite party. Before I appreciate the contentions raised by the learned Counsel of both the parties it would be apposite to consider the provisions of Order 32, Rule 15 of the C.P.C. which run as follows :--
'The provisions contained in Rules 1 to 14, so far as they are applicable, shall extend to persons adjudged to be of unsound mind and to persons who though not so adjudged, are found by the Court on enquiry, by reason of unsoundness of mind or mental infirmity to be incapable of protecting their interest when suing or being sued.'
On bare perusal of the aforesaid Rule it appears that the above Rule contemplates two kinds of cases where a person is already adjudged to be of unsound mind as defined under the Lunacy Act. That would be the first category of persons of unsound mind whose cases are covered by the provisions of Rule 15 of Order 32. There may be another category of persons who are of unsound mind and not so adjudged by the Court. The second part of the provisions of Rule 15 shows that in case of such persons who are not adjudged as persons of unsound mind but are found by the Court on enquiry that by reason of unsoundness of mind ar mental infirmity to be incapable of protecting their interest when suing or being sued. Once this finding is arrived at the provisions of Rules 1 to 14 so far they may be applicable automatically get extended to the persons of those type. Rules 1 to 14 of Order 32 deal with the procedure to be followed when the plaintiff or the defendant is a minor. In case of persons of unsound mind whether he is plaintiff or defendant the provisions of Rule 15 of Order 32 shall apply. The enquiry as contemplated by the provisions of Rule 15 of Order 32 appears to be an ex parte enquiry in absence of the other party, if the person happens to be the plaintiff. But if he happens to be the defendant, he must make a prayer to Court through his next friend to allow him to be represented by his next friend. It further appears that the aforesaid Rule 15 provides an enquiry by the Court to be satisfied prima facie and to give a finding that the provision of Order 32, Rules I to 14 get extended because the person appears to be of unsound mind or having such mental infirmity thus making him incapable of protecting his own interest. This view also finds support from the view expressed in Somnath v. Tipanna Ram Chandra Janu as reported in AIR 1973 Bom 276. It is clear that if the plaintiff happens to be a person of unsound mind not being capable of protecting his interest he must file the suit through his next friend and the next friend should first apply and obtain a finding of the Court under the provisions of Order 32, Rule 15 that the plaintiff is in fact a person of unsound mind. Similarly, if the defendant happens to be a man of unsound mind and not capable of protecting his interest, the next friend must make an application supported by an affidavit to detain a decision from the Court after an enquiry under Order 32, Rule 15 of the C.P.C. Therefore, in the present case the second part of the aforesaid Rule 15 is attracted.
5. In the above context let me now consider the submission of Mr. P. K. Goswami, learned Counsel for the petitioner. It is submitted by the learned Counsel that the defendant through his son filed petition in the Court intimating about the unsoundness of mind of the defendant and to the effect that the defendant was incapable of protecting his interest and also prayed to Court to extend the time for filing written statement by the defendant. It is further contended by .the learned Counsel that the defendant also filed a medical certificate in support of his mental illness. Several decisions were placed before me in support of contentions raised by Mr. Goswami as regards Order 32, Rule 15 of C.P.C. It is submitted that the provisions being mandatory an obligation is cast upon the Court to make an enquiry as to the incapability of the defendant to protect his interest in the suit. Therefore, according to the learned Counsel the learned Court below was wrong in not making an enquiry and to give a finding. As regards the decision on the merit of the appeal it is submitted that the learned appellate Court also did not consider the fact that the plaintiff was unable to prove his case to obtain a decree as contemplated under any of the clauses enumerated under Section 5 of the Assam Urban Areas Rent Control Act, 1972. The learned Counsel also submitted that in absence of any finding the Court loses its jurisdiction to pass a decree for eviction of the defendant. In support of his contention as regards mandatory provisions of Order 32, Rule 15, C.P.C. the learned Counsel has referred to me decisions rendered in Duvvuri Ram Reddiv. Duvvudu Papi Reddi, AIR 1963 Andh Pra 260; Smt. Godawari Devi v. Smt. Radha Pyari Devi, AIR 1985 Pat 366; Syed Hassan Baffakki Thangal v. Kalliath Thazha Chirutha, AIR 1988 Ker 160; Somnath v. Tipanna Ramchandra Jannu, AIR 1973 Bom 276.
6. I have perused the decisions as cited before me by the learned Counsel for the petitioner. It appears that the ratio of the aforesaid decisions contemplate that as and when a petition is made by next friend praying for an enquiry under the provisions of Order 32, Rule 15 of C.P.C. the Court is to enquire and after being satisfied that in fact the defendant or plaintiff, as the case may be, is of unsound mind and not capable of protecting his interest in the litigation, allow the next friend to avail and proceed with the suit.
7. Mr. D. N. Barua, learned Counsel for the opposite party while opposing this petition has at the outset drawn my attention to the earlier revision petition filed by the present petitioner in this Court which was numbered as Civil Revn. No. 10/86. As regards the legal principle and the effect of the provisions of Order 32, Rule 15 of Civil P.C., Mr. Barua has not raised any dispute. What has been submitted by Mr. Barua is that each case must be judged from its own fact. It is a very correct submission. Therefore, let me now consider the first submission of Mr. Barua as regards earlier revision petition filed by the defendant in this Court. When the ex parte order was passed on failure of the defendant to file written.statement, the defendant immediately.rushed to this Court and a petition was filed through his Advocate with an affidavit sworn by his son Shri Paban Kumar Panda. When the said revision petition was posted as motion, the plaintiff opposite party entered appearance through his counsel and therefore the petition was heard on merit and disposed of on the same date i.e. 21-1-86 by the learned single Judge of this Court. In the body of the petition which contains about 24 paras there is no mention about the illness of the defendant. But the petitioner did not insist even in this Court for a direction to make an .enquiry under Order 32, Rule 15 of C.P.C. The record of the Civil Revision was called for at the request of the learned Counsel for the opposite party. It was stated in para 17 of the petition by the petitioner-defendant that the effect of 1976 amendment of C.P.C. had not been properly appreciated by the learned trial Court. In para20 it was stated '..... therefore, the learned Court below was not justified in rejecting the prayer for allowing time for filing written statement and for ordering ex parte hearing of the suit'. In the prayer portion it appears that a simple prayer was made to this Court to vacate and/or to quash the order dt. 3rd Jan., 1986 passed by the learned Assistant District Judge by which he rejected the prayer for time for filing written statement and posted the case for ex parte hearing. After hearing the learned Counsel of the parties this Court by order Dt. 21-1-86 disposed of the ease by setting aside the impugned order dt. 3-1-86 passed by the learned Assistant District Judge.
'..... In this view of the matter, the order dated 3-1-86 passed by the learned Asstt. Dist. Judge in T.S. 13-85 is set aside and the petitioner is allowed to file written statement subject to payment of costs of Rs. 50/-. Mr. Birmiwal submits that he may be given 2 (two) months time for filing written statement on the ground that his client has fallen sick. Accordingly, the petitioner is allowed to file written statement on or before 21-3-86. No further adjournment will be allowed.' (Emphasis laid by me.)
From the above order it is clear that a time-bound period of 2 months was allowed to file written statement. There was no whisper on the side of the petitioner nor there is any indication in the petition that the defendant wanted to represent his case through his next friend and for this purpose an enquiry under Order 32, Rule 15 of the C.P.C. was needed. It appears that the counsel for the defendant himself undertook to file written statement for which a prayer was made for a period of 2 months which was however allowed by this Court with a further direction that no adjournment would be granted. On the basis of the decision and direction rendered by this Court, Mr. Barua submits that it was obligatory on the part of the defendant to file written statement in strict compliance with the direction of this Court, bul instead he made a prayer to the Court for extension of time on the same ground of illness of the defendant. It was not open for thq trial Court to extend any further time as directed by this Court. If the defendant desired to obtain further extension he could have approached this Court for extension of time to file written statement. But he having failed to approach this Court it was not open for the learned trial Court to extend the period of time to file written statement. This submission appears to have some force.
8. I have perused the impugned judgment of the learned trial Court and also the judgment of the learned appellate Court. It appears that the learned appellate Court considered all aspects of the matter by referring each and every date of making application for time by defendant. Therefore, as observed by the learned appellate Court, the learned trial Court followed the provisions of Order 8, Rule 10, C.P.C. to proceed with the case against the defendant for his failure to file written statement within the time-bound period. It is submitted by Mr. Barua, learned Counsel for the opposite party that when the learned trial Court disposed of the suit of the plaintiff ex parte under the provisions of Order 8, Rule 10, C.P.C. no appeal lies. This submission is not acceptable because if the appeal is no! maintainable or does not lie under the provisions as contemplated under O.43 of the C.P.C. in 1976, the appeal lies against the ex parte decree under Section 96 of the C. P.C. as an appeal against the decree.
9. Coming to the main submission of Mr. Barua it is noticed from the impugned judgment that the learned appellate Court also considered the petitions dt. 2-3-85 and 2-4-85 filed by the appellant-defendant who did not mention about his unsoundncss of mind in any of such petitions. It was only in the petition dt. 3-5-85 the appellant-defendant while praying for time mentioned about his mental set back since Nov., 1984. If that be the position there was no bar on the part of the defendant to mention the said fact with a prayer lor a direction in this Court while moving the earlier revision petition for a direction to hold an enquiry as contemplated under Order 32, Rule 15 of C.P.C. The learned appellate Court discussed all aspects of the matter and dismissed the appeal. When the defendant failed to move the Court initially after appearance in the Court slating about his illness and about his incapability to protect his interest in the suit, the subsequent stand of the defendant to the effect that the learned trial Court failed to consider the mandatory provisions of Rule 15 Order 32 of the C.P.C. cannot stand. If such a petition for enquiry under the provisions of Rule 15 of Order 32 of the C.P.C. would have been moved earlier the learned trial Court could have considered the prayer and could have held an enquiry in this regard. The salient fact that can be noticed is thai even in this Court no such prayer was made by the defendant while moving the curlier revision petition. Therefore, it cannot he said that the defendant was incapable of defending himself in the suit. The suii filed by the plaintiff was a suit for eviction of t he defendant from the suit premises on the ground of default and also bona fide requirement. The son of the defendant who was taking steps on behalf of the defendant in earlier revision petition could have prayed to this Court for a direction to the learned trial Court to hold an enquiry as to the illness of the defendant with a prayer for allowing the defendant to be represented by his next friend if he was really suffering from mental illness. That was not done. The reason is also not known as to why this fact which is now agitated was purposely omitted to be raised in this Court on earlier occasion when adjournment for filing written statement was refused.
10. I have given my due consideration on the submission of the learned counsel of the parties and also the facts and circumstances which have been fully enumerated in the judgment of the learned appellate Court below. I am, therefore, of the opinion that the learned appellate Court was correct in his finding to uphold the ex parlc decree passed by the learned trial Court. Though much has been agitated before me by the learned counsel for the petitioner as to the aforesaid fact, it is not possible to concede to the arguments as advanced for the obvious reasons as discussed above. This being a revision petition this Court is concerned to consider as to whether the finding of the learned appellate Court is perverse or arrived at without consideration of the materials on record or there is any procedural error. I do not find any kind of such illegality, perversity or commission of any procedural error in the impugned judgment of the learned appellate Court below.
For the reasons stated above I do not find any material to interfere with the impugned judgment. This revision petition is, therefore, dismissed with no order as to cost.