KAVITA ASHOKRAO TAYNATHversusPUNJARAM DAULATRAO GONDAGE AND OTHERS

2026:BHC-AUG:44240
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                           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      BENCH AT AURANGABAD

                                905 WRIT PETITION NO. 2218 OF 2026

                     Kavita D/o Ashokrao Taynath
                     Age : 30 years, Occu. Service
                     R/o. Trimurti Nagar, Parbhani
                     Tq. and Dist. Parbhani                        ….Petitioner
                                        VERSUS
             1.      Punjaram S/o Daulatrao Gondage
                     Age : 51 years, Occu. Agri
                     R/o. Building No.2, Flat No.67,
                     Chunchale Shivar, XLO Point, Nashik,
                     Tq. and Dist. Nashik.
             2.      Shashikala W/o Ravsaheb Fate
                     Age : 75 years, Occu. Household,
                     R/o. Girgaon, Tq. Sailu, Dist. Parbhani
             3.      Shushila @ Kavubai W/o Dnyaneshwar
                     Thamke
                     Age : 72 years, Occu. Household,
                     R/o. Girgaon, Tq. Sailu, Dist. Parbhani
             4.      Rukmin W/o Nagorao Taynath
                     Age : 70 years, Occu. Household,
                     R/o. Ekhrukha Tarfe Pedgaon,
                     Tq. and Dist. Parbhani
             5.      Dwarkabai W/o Sarjerao Taur
                     Age : 65 years, Occu. Household,
                     R/o. Ridhori, Tq. Majalgaon, Dist. Beed.      ….Respondents

                                              ...
             Mr.Santosh N. Pawde And Adv. M.K. Bhosale for the Petitioner.
             Mr.Sudhir K. Chavan a/w Mr.Someshwar S. Birajdar & Ms.Ranjita R.
             Mahajan for Respondent No.1.
                                              ...

                                 CORAM                  : MANJUSHA DESHPANDE, J.
                                 RESERVED ON   : 04.09.2026
                                 PRONOUNCED ON : 29.09.2026




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JUDGMENT :

1.            Rule. Rule made returnable forthwith and heard finally by

consent of the parties.

2.            The Petitioner is taking exception to the order dated 13 th

January, 2026, passed by the Civil Judge Senior Division, Parbhani below

Exhibit-1 in R.C.S. No.55 of 2024.

3.            The learned Advocate for the Petitioner, Mr. Pawde, submits

that Respondent No.1 herein had instituted a suit, being R.C.S. No.55 of

2024, against the Petitioner and Respondent Nos.2 to 5, seeking

declaration of ownership, decree of perpetual injunction, and declaration

that the Sale Deed executed by them on 24 th May, 2021, is null and void

and not binding upon him.

4.            It is submitted that Respondent No.1 has challenged the said

Sale Deed primarily on the ground that, at the time of its execution, he

was suffering from mental illness and was, therefore, not in a fit state of

mind to execute the said document. According to Respondent No.1, the

Sale Deed executed by him on 24th May, 2021, is not binding upon him.

The Petitioner who is the Defendant No.5 in the suit, while opposing the

suit, filed an application under Order 32, Rule 2 read with Rule 15 of the

Code of Civil Procedure, 1908 (‘CPC’) contending that the suit instituted

by the General Power of Attorney (‘GPA’) is not maintainable hence, the

plaint may be taken off the file. Though application was opposed by

Respondent No.1, an order came to be passed by the Civil Judge Senior

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Division, Parbhani taking the plaint of the file, vide order dated 18 th April,

2024.

5.            It is submitted that in view of the order dated 18 th April,

2024, the Respondent No.1 filed a fresh application below Exhibit-32

praying for appointment of his son-in-law as his next friend. Even this

application was opposed by the Petitioner. This application has been

opposed by the present Petitioner by filing the ‘say’ to the application

contending that, although the plaint has been taken off the file by the

Court by invoking Order 32, Rule 15 of the CPC, keeping the matter for

taking further steps by the Respondent No.1. The Respondent No.1 has

thereafter filed an application for appointment of next friend, on the

ground that he himself is a person of unsound mind hence, he may be

allowed to be represented through his next friend, i.e., his son-in-law.

This application was opposed on the ground that, the medical

prescription relied upon by the Respondent No.1 is not sufficient to

adjudge the Respondent No.1 to be a person of unsound mind. Unless he

is adjudged to be a person of unsound mind, the question of appointing

next friend to represent him would not arise. It was stated that an inquiry

is required to be conducted, to verify whether the Respondent No.1 is

actually a person of unsound mind. Only upon obtaining permission to

sue through next friend, the next friend can represent the Respondent

No.1. Since no such procedure has been followed in the present case and

same deserves to be dismissed.
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6.            This application was decided by the learned Judge by

holding that the inquiry that is contemplated under Order 32, Rule 15 of

the CPC includes calling upon the person who is required to be adjudged

of unsound mind and to assess his mental capacity and soundness of

mind. While doing so it is open for the Court to take assistance in the

form of medical examination and the evidence of the doctor who is

treating the Respondent No.1. The Respondent No.1 who is alleged to be

of unsound mind should have been invariably called for being

questioned, when the case falls under the second part of Order 32, Rule

15 of the CPC. It is held that even though the earlier application was filed

through GPA on the ground that the Respondent No.1 is of unsound

mind, the pleadings of the Respondent No.1 were found to be not

sufficient and no inquiry was undertaken in the matter.

7.            It is observed that the procedure contemplated under Order

32 of the CPC provides for a person under disability to be represented

through a next friend and not through a GPA. In view thereof, the suit

instituted through a GPA, was taken off the file.

8.            Relying on the Judgment in case of Somnath V/s. Tripanna

Ramchandra Jannu, 1972 CJ (Bom) 76 , the learned Judge has held that

before allowing or rejecting any application under Order 32 of the CPC,

an inquiry is necessarily required to be conducted for appointment of a

next friend, and the application was rejected. However, while passing the

order, the learned Civil Judge Senior Division, Parbhani has framed a
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preliminary issue as to the unsoundness of mind of the Respondent No.1

at Exhibit-1 which was to be heard and decided on its own merits.


9.            On the said injunction application an order has been passed

on 21st June, 2025, recording that although the Respondent No.1 was

directed to keep himself present for examination before the Court on the

next date, i.e., 27th August, 2024, he has neither caused his appearance

nor filed evidence before the Court. Even the adjournment application is

filed by Respondent No.1 on 21 st June, 2025, it did not contain sufficient

reason, for his absence before the Court on the day fixed for causing his

appearance, therefore, the order came to be passed directing Respondent

No.1 to remain present before the Court on 1 st July, 2025, failing which,

the suit would be dismissed as per Order 39, Rule 11 of the CPC. Upon

such order being passed on 21 st June, 2025, a common order came to be

passed below Exhibits-1 and 32, on 13 th January, 2026. In the impugned

order the learned Judge has observed that he has gone through the

medical documents and records, which reflected that Respondent No.1

was suffering from mental disease, i.e., schizophrenia and has been

taking treatment since long. Based on the documents placed on record

about the treatment of the plaintiff, the learned Judge has come to the

conclusion that the plaintiff is suffering from mental disease and,

therefore, he can be permitted to appoint next friend. It is also recorded

that the learned Judge has personally interacted with the Respondent


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No.1 and, based on the interaction, he was of the opinion that the

Plaintiff was not in a fit state of mind.

10.           In view thereof, he has answered the preliminary issue

framed on 27th August, 2024 in affirmative and has proceeded to pass the

order declaring the Respondent No.1 to be of unsound mind and

permission is granted to appoint next friend on his behalf and proceed

with the suit.

11.           The learned Advocate for the Petitioner submits that the

learned Judge has come to a conclusion about the incapacity of the

plaintiff to conduct the suit by interacting with him and on the basis of

the documents placed on record, which is not permissible. According, to

him an inquiry is required to be conducted before declaring any person to

be a unsound mind. He submits that the learned Judge is not an expert to

arrive at a conclusion whether the plaintiff is of a unsound mind to such

an extent that he is not in a position to protect his own interest ably. Due

to absence of inquiry before declaring the plaintiff of unsound mind, the

order passed by the learned Civil Judge Senior Division, Parbhani suffers

from jurisdictional error and as such, becomes unsustainable. In support

of his submissions, he has relied on the decision of the Hon’ble Supreme

Court in case of Kasturibai and others V/s. Anguri Chaudhary, (2003) 3

SCC 225 ; Shushma w/o Umesh Kanpathak V/s. Umesh s/o Vijayrao

Kanpatha, 2017 SCC OnLine Bom 4387 , Somnath V/s. Tipanna

Ramchandra Jannu, AIR 1973 BOMBAY 276 and a decision of Kerala
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High Court at Ernakulam in CRP NO.110 of 2017 dated 21 st August, 2023

(Gopkumar s/o Krishnan Nair V/s. Madhusoodanan Nair s/o Krishna

Pillai), where the learned Judge of the Kerla High Court has recorded a

finding that mere questioning of the Petitioner/Plaintiff by the Court and

recording of answers alone is not sufficient to comply with the

requirement of an inquiry as mandated under the second limb of Rule 15

of the Order 32 of the CPC. The inquiry as contemplated under Order 32,

Rule 15 of the CPC, is to be conducted either by the Medical Board or by

calling an expert without jumping to the conclusion on examination of

the Petitioner himself by the Court, which does not amount to protecting

the interest of the person who, is not capable to defend his case.

12.           Per-contra, the learned Advocate for contesting Respondent

No.1 submits that the Petitioner is blowing hot and cold at the same time.

After filing of the suit by Respondent No.1, the Petitioner himself has filed

an application under Order 32, Rule 2 of the CPC, contending that

considering the Respondent No.1 himself claims that he is a mentally ill

person, a suit filed through GPA would not be permissible. The plaint

needs to be taken off the file under order 32, Rule 2 of the CPC. In view

of the application filed by the Petitioner, order below Exhibit-20 has been

passed by the Civil Judge Senior Division, Parbhani directing the plaint

R.C.S. No.55 of 2024, shall be taken off the file. Thus, according to him

the Petitioner himself has admitted that, the Respondent No.1 is a person

of unsound mind, who cannot be represented through GPA but needs to
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be represented through next friend. However, when the Respondent No.1

has filed an application seeking permission to be represented through the

next friend, the same is again objected by the Petitioner.

13.           After framing of preliminary issue as to unsoundness of mind

of the Respondent No.1 on the application below Exhibit-32, the

Respondent No.1 remained present before the Court pursuant to the

order dated 21st June, 2025. He has also produced the medical records

about his mental illness in support of his claim that he is suffering from

schizophrenia since long. After perusing the documents as well as

interacting with Respondent No.1, the learned Judge has come to a

conclusion that Respondent No.1 is not in a fit state of mind and has

adjudged him to be a person of unsound mind. Based on such declaration

about unsoundness of mind, permission was granted to appoint next

friend on behalf of Respondent No.1 and proceed with the suit vide order

dated 13th January, 2026.

14.           The learned Advocate for the Respondent relies on the

documents supporting the medical treatment given to him. The certificate

of mental illness issued by Dr. Nagapurkar on 4 th September, 2024, which

certifies that the Respondent No.1 had been under the treatment of the

said doctor for schizophrenia since May, 2017. Therefore, in view of the

sufficient material being available to the learned Judge, he has rightly

passed the order after conducting inquiry himself about the mental state

of Respondent No.1. The learned Advocate, Mr.Chavan, relies on a
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decisions in the case of Sharda V/s. Dharmpal (supra) as well as

Kasturibai and others (supra), to contend that in fact the aforementioned

two case laws that have been referred consistently in the decisions relied

upon by the Petitioner are misplaced and are given in the peculiar facts

situation.

15.           In the Judgment of this Court Shushma w/o Umesh

Kanpathak (supra) and Sharda (supra), even in the aforementioned

decisions, according to the learned Advocate, the issue before the Hon’ble

Supreme Court was about the right of personal liberty, when there is a

conflict between the fundamental rights of two parties and the Court has

to balance the competing rights. One of the issue before the Hon’ble

Supreme Court was the extent and nature of mental illness, required for

grant of divorce on the ground of mental illness, in context with the

Mental Health Act, 1987. Therefore, the scope and applicability of mental

illness in the proceedings initiated under the Hindu Marriage Act, 1955 is

totally different from the context of the application under order 32, Rule

15 of the CPC. He, therefore, submits that the case law relied upon by the

Petitioner is not applicable to the facts of the present case.

16.           After hearing the parties and perusing the documents placed

on record, a short issue that arises before this Court is whether the Trial

Court on its own can declare a party before it to be of unsound mind,

without conducting any formal inquiry or calling for any evidence of an

expert to arrive at a conclusion about the unsoundness of mind of a party.
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It is undisputed that the Respondent No.1 was called upon to personally

remain present before the Court, vide order dated 21 st June, 2025, when

he was personally present before the Court, the learned Judge has

perused his medical record, which supported his claim that he was

suffering from a mental illness, i.e., schizophrenia, and was under

treatment since 2017. Apart from the documents placed on record, the

learned Judge has also personally interacted with Respondent No.1 and

has arrived at a conclusion that he does not seem to be in a fit state of

mind, and competent to ably conduct his own case.

17.               Order 32, Rule 15 Order of the CPC governs the cases of a

party to the suit who is suffering from mental infirmity, rendering him

incapable of protecting his interest ably, which is reproduced hereunder,

which reads thus :

                     “[15. Rules 1 to 14 (except rule 2-A) to apply to
              persons of unsound mind – Rules 1 to 14 (except rule 2-A)
              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 or being sued.]”


18.               Rule 15 of the CPC is divided into two parts. The first part

provides that the provisions on in Rules 1 to 14 that are applicable to the

minors shall apply to the persons who are adjudged to be person of

unsound mind before or during pendency of the suit. Similarly, it shall

also apply to the persons who although are not adjudged, but on inquiry
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by the Court, are found to be incapable by reason of any mental infirmity

of protecting their interest when suing or being sued.

19.                In this regard, we may profitably refer to a decision of this

Court in the case of Somnath (supra). While considering the scope of

Rule 15 of the CPC, the Division Bench has made following observation :

              “17. The above discussion clearly leads to the the logical
              conclusion that when the plaint is being examined for the
              purpose of admission, if it contains a statement as required
              by clause (d) of Rule 1 of Order 7 that the plaintiff is a
              person of unsound mind and that a next friend is suing on
              his behalf, the court must at once hold an inquiry. It is the
              duty of the court to do so, and it is not necessary for the
              next friend to make a separate application for that purpose.
              This inquiry should ordinarily include the calling of the
              plaintiff himself and questioning him in Court. If the Court
              entertains doubt about the mental capacity or the
              soundness of his mind, it is open to the Court to take
              further assistance in the form of medical examination and
              the evidence of the doctor under whose observations the
              plaintiff may be kept. The quantum and extent of inquiries
              must be left in each case to the circumstances prevailing.
              There may be a plaintiff who on immediate view may
              appear to be a person of unsound mind, and the Court may
              not need much evidence beyond recording of the questions
              put to and the answers given by the person concerned.
              There can be other cases which are not so clear and more
              evidence may be necessary. However, apart from the total
              extent of the evidence that might be led, we would suggest
              that as a matter of strong commonsense approach, the
              plaintiff who is alleged to be of unsound mind should be
              invariably called for being questioned when the case falls
              under the second part of Rule 15 of Order 32. This inquiry
              is made for the purpose of recording a finding by the court
              that the plaintiff is a person of unsound mind, or a person
              mentally so infirm as to be incapable of protecting his own
              interests. The provisions of Rule 15 of Order 32 make it
              possible for a next friend to sue on behalf of an adult
              person as a next friend only when the person is either so
              adjudged by a court of competent jurisdiction, or if not so
              adjudged, is found by the court on inquiry to be so. That is
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              the foundation, prima facie, for a next friend to avail and
              proceed with the suit. Such inquiry is obviously an ex parte
              inquiry for the court to give a finding and to admit the
              plaint and issue the process to the other side.”


20.                In the aforementioned decision, this Court has elaborately

considered the procedure required to be adopted by the Courts. It is held

that the Court should ordinarily call the plaintiff himself and question

him, if the Court entertains doubt about his mental capacity or

unsoundness of mind, it is open for the Court to take further assistance,

in the form of medical examination and evidence of the Doctor. It is

further held that the quantum and extent of inquiries depend on

circumstances of each case. A person of unsound mind can be

immediately assessed by the Court, where the Court has a doubt, it may

call for further evidence like opinion of the Doctor.

21.                In view of the aforementioned observations of this Court, on

going through the procedure adopted by the learned Judge of the Trial

Court, there does not appear any error in the procedure adopted by him.

Although the Petitioner has relied on various case laws to support his

contention that the inquiry cannot be conducted by the learned Judge

himself, but it has to be conducted by leading expert evidence of the

doctor under whose observations, the plaintiff is taking his treatment or

in the form of medical examination. In view of the Judgment of the

Division Bench of this Court in the case of Somnath (supra), as compared

to the other decisions relied upon by the Petitioner, in case of Kasturibai
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and others (supra) and Sharda (Supra), upon going through the ratio of

both the Judgments, they do not appear to be applicable to the facts of

the present case. The context and circumstances in which the said two

judgments were rendered are entirely different.

22.           In the case of Kasturibai and others (supra), the plaintiff had

filed a suit against the Respondent for partition of certain immovable

properties. The Respondent, who was aged 87 had filed an application

with a prayer that, she be summoned before the Court so as to enable the

Court to inquire about her state of mind and, if necessary, guardian be

appointed for defending her in the suit. The said application was

dismissed by the learned Judge of the Trial Court, which was subject

matter of challenge in the Revision Application in terms of Section 115 of

the CPC before the High Court. The High Court by a reasoned order

allowed the Revision Application, holding that the Application under

Order 32, Rule 15 of the CPC, for appointment of a guardian, for

defending her in the suit would not cause any prejudice to the either

parties. It was held that Trial Court acted with material irregularity in

rejecting the application filed under Order 32, Rule 15 of the CPC, and

the impugned order was set aside. The aggrieved party filed an

application for recalling the order. This application instead of being

placed before the Single Judge, who decided of the Civil Revision

Application, was placed before the Division Bench and the same came to

be dismissed by a reasoned order.
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23.           Therefore, the question before the Court was whether the

Division Bench has committed an error in treating the application for

recalling of order as an appeal against the order passed by the Single

Judge. After considering the Order 32, Rule 15 of the CPC, the Hon’ble

Supreme Court while setting aside the impugned order held that the only

order that could have passed is, issuing directions to the Trial Judge to

hold an inquiry, so as to enable him to arrive at a conclusion, whether the

Respondent was incapable protecting her interest, by reason of any

mental infirmity. Since no such inquiry was held, therefore, it is held that

the learned Single Judge has committed a Jurisdictional error, in passing

the impugned Judgment.

24.           Upon noticing, the error it has been set aside by the Division

Bench. By making the aforementioned observations, the matter was

remanded back to the Trial Judge for consideration of the matter afresh

in terms of Order 32, Rule 15 of the CPC. Therefore, there is no finding

about the manner in which the powers are to be exercised under Order

32, Rule 15 of the CPC. It does not in any manner hold that it is necessary

to conduct an inquiry through an independent agency or through medical

examination.

25.           Even in the case of Sharda (supra), the issue before the

Court was about the nature and extent of mental disorder necessary to

justify a decree of divorce in a case of incurable unsoundness of mind of

such a kind that the other spouse cannot reasonably be expected to live
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with him or her. While considering the relevance of the medical

examination and the onus of proof about unsoundness of mind, it was

held that onus of proof is on the Applicant who pleads that the non-

applicant is of unsound mind. The Hon’ble Supreme Court had

formulated questions as to whether matrimonial Court has the power to

direct a party to undergo medical examination ? and whether passing of

such an order would be violative of Article 21 of the Constitution of

India.

26.           The aforementioned questions, which were the subject

matter of challenge before the Hon’ble Supreme Court, are not in issue in

the present case. The issue in the present case is different from those

arising in the cases of Kasturibai and Others (supra) and Sharda (supra).

27.           The issue in the present case is somewhat similar to the issue

that had fallen for consideration of this Court in the case of Somnath V/s.

Tipanna Ramchandra Jannu (supra), where this Court has categorically

held that second part of the provision of Rule 15 of the CPC provides

that, in case of a person who is not already adjudged to be of unsound

mind, the Court on inquiry has to find out, whether by reason of

unsoundness of mind or infirmity, the person concerned is incapable of

protecting his/her interest, when suing or being sued. While deciding the

scope of inquiry under the later part of Order 32, Rule 15 of the CPC, this

Court has observed that inquiry should invariably include calling of the

plaintiff himself and questioning him in Court. If Court entertains doubts
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about the mental capacity or the soundness of his mind, it is open to the

Court to take further assistance in the form of medical examination and

evidence of doctor under whose observation, the plaintiff may be kept.

The quantum and extent of inquiry must be left in each case to the

circumstances prevailing. There may be a plaintiff who on immediate

view may appear to be a person of unsound mind and Court may not

need further evidence beyond recording of questions, and answers given

by the person concerned. While in some other cases, which are not so

clear more evidence may be necessary. It is held that the plaintiff who is

alleged to be unsound mind should be invariably called for being

questioned when case falls under second part of Order 32, Rule 15 of the

CPC. The inquiry is made for the purpose of recording a finding by the

Court that the plaintiff is a person of unsound mind or person is mentally

so infirm that he is incapable for protecting his own interest. Thus, in

view of the express observations made by this Court, there remains no

doubt that at the first instance, the Judge of the Trial Court before whom

the suit is filed is empowered to call a person, who is alleged to be of

unsound mind to satisfy himself about the substance in the issue raised

before him. Upon questioning such person, prima facie, if he is of the

opinion that the concerned persons is not in a position to defend his case.

In such case, no further inquiry is necessary. However, in case he

harbours doubts about the allegations of unsoundness of mind, he can

very well refer the matter to an expert or call upon the Doctor under
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whose guidance, the concerned person is supposed to be under

treatment.

28.           In the present case admittedly, the Respondent No.1 himself

had pleaded that he is of unsound mind, therefore, he may be permitted

to file the suit through his next friend. Even, previously the suit was filed

by him through GPA for the same reason, however pursuant to the order

passed by the Civil Judge Senior Division, Parbhani invoking Order 32,

Rule 2 of the CPC, the plaint in RCS No.55 of the 2024 was taken off

from the file, vide order dated 18 th April, 2024. Therefore, the

Respondent No.1 has thereafter filed an application below Exhibit-32,

praying for appointment of his son-in-law as his next friend, since he is

not in a fit mental state to defend his case.

29.           The learned Judge has framed an issue as to unsoundness of

mind of the Respondent No.1 to be decided on its own merits. While

passing an order below Exhibits-1 and 32 on the preliminary issue, the

learned Judge has recorded his finding that he has personally interacted

with the Respondent No.1 and found that he is not in a fit state of mind,

and he seems to be a person of unsound mind. After interacting with him,

he has arrived at conclusion that the Respondent No.1 is not in a fit state

of mind and cannot ably protect his interest, which is also supported by

the medical record produced before the learned Judge, after which he has

permitted the suit to be proceeded by appointing next friend. The learned

Judge has rightly exercised his powers under Order 32, Rule 15 of the
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CPC. Therefore, no interference is warranted in the order passed by the

learned Civil Judge Senior Division, Parbhani.

30.           As such, the Writ Petition is dismissed.

31.           Rule is discharged.



                                            [ MANJUSHA DESHPANDE, J. ]




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