Lalita Gurtu versus Arvind Kumar & Ors. CMP No. 16762 of 2024 in RSA No. 24 of 2007 Reserved on 06.07.2026 14.07.2026 Present: Mr Ajay Kumar, Senior Advocate, with Ms Vanshika, Advocate for the appellant. Mr Kulwant Chauhan, Advocate, for the respondent. The present application has been filed for referring the question of mental health/condition of the appellant to the Mental Healthcare Board, Himachal Hospital of Mental Health and Rehabilitation, Boileauganj, Shimla, for a report. 2. It has been asserted that the appellant has been suffering from schizophrenia, a mental illness that causes hallucinations and illusions to her, for the past 20 years. The Court passed an order on 08.12.2016 in CMP No. 5160 of 2016 and referred the matter of the appellant’s mental health to learned District Judge Chamba for holding an inquiry under Order XXXII Rule 15 of the CPC. The parties were directed to appear before learned District Judge Chamba on 02.01.2017. An application was filed under Order No. XXVI Rule 4 and 5 of the Code of Civil Procedure (CPC) for appointment of a local commissioner to examine the doctors treating the appellant, which was dismissed by learned District Judge Chamba and the matter was submitted to this Court without holding any inquiry. Another application was filed before this Court for the appointment of a local commissioner, which was disposed of on 09.07.2024, because the learned counsel wanted to file a fresh application. Mental Health Care, 2017 was passed by the Parliament in the meantime, which came into force on 29.05.2018. Section 105 of the Mental Healthcare Act provides for the determination of the question regarding the mental illness by the mental health board if any such question arises during the course of any judicial proceedings. The Government of Himachal Pradesh has constituted the Mental Health Review Board for different districts in Himachal Pradesh. Therefore, the matter is required to be referred to the Mental Health Review Board to determine the appellant’s mental condition. Hence, the application. 3. The application is opposed by filing a reply, making a preliminary submission regarding the lack of maintainability. It was asserted that both the learned Courts below have recorded concurrent findings of fact which may not be disturbed in a regular second appeal. The appellant had filed a civil suit to challenge the sale deed executed by her on 06.11.2001 through her daughter, who was appointed by her as her General Power of Attorney. The appellant also appeared in person before the Court and made the statements on oath, which shows that she was not suffering from any disease. She had executed another sale deed on 11.12.2002 through her General Power of Attorney. This sale deed was not questioned by the appellant. It was specifically denied that the appellant was suffering from relapsing schizophrenia for 20 years before filing the suit. It was asserted that the application has been filed to prolong the proceedings. Hence, it was prayed that the present application be dismissed. 4. A rejoinder denying the contents of the reply and affirming those of the application was filed. 5. I have heard Mr Ajay Kumar, learned Senior Counsel, assisted by Ms Vanshika, learned counsel for the appellant/applicant and Mr Kulwant Chauhan, learned counsel for the respondent. 6. Mr Ajay Kumar, learned Senior counsel for the appellant, submitted that the appellant suffers from mental illness as defined in Section 2 (1) (s) of the Mental Healthcare Act, 2017. The Court should refer the application to determine the mental status of the party to the Mental Health Review Board. The State Government has constituted the Mental Health Review Board pursuant to the direction issued by the Hon’ble Supreme Court of India in Sukhdeb Saha vs. The State of Andhra Pradesh 2025 INSC 893. Therefore, he prayed that the present application be allowed and a direction be issued to the Mental Health Review Board to assess the appellant’s mental condition. 7. Mr Kulwant Chauhan, learned counsel for the respondent, submitted that the appellant had filed a civil suit through her General Power of Attorney. She pursued the civil suit and the appeal without claiming the benefit of Order XXXII of the CPC. She had appeared before the Court as a witness, which shows that her mental condition is sound, and the plea taken by her that she has been suffering from relapsing schizophrenia for 20 years is not correct. This plea has been taken to set aside the sale deed executed by her through her Power of Attorney, and it is not bona fide. Therefore, he prayed that the present application be dismissed. 8. I have given a considerable thought to the submissions made at the bar and have gone through the records carefully. 9. Section 105 of the Mental Healthcare Act reads that if proof of mental illness is produced and is challenged by another party during any judicial proceeding, the Court shall refer it for further scrutiny to the concerned board, and the board shall, after examination of the person alleged to have mental illness either by itself or through a committee of experts, submit its opinion to the Court. The legislature has consciously used the word shall and not may, clearly suggesting that the provision of Section 105 is mandatory. Delhi High Court held in Ankur Abbot v. Ekta Abbot, 2023 SCC OnLine Del 4074, that the provision of Section 105 regarding the inquiry is mandatory and creates a statutory right in favour of any person who claims to have any mental illness specified in Section 2 (1) (s) of the Mental Health Act. It was observed: 20. In view of the aforesaid discussion, this Court is of the opinion that the Mental Healthcare Act, 2017, is a special Act and by virtue of Section 120 of the said Act, the same has been given an overriding effect with respect to any other law for the time being in force. Further, a bare reading of Section 105 of the said Act reflects that the words used in the said Section are “the Court shall refer the same for further scrutiny”, which is mandatory in nature. Given the purpose and nature of the enactment, the word ‘shall’ in the context of the said Act can be construed to be mandatory. Reliance can be placed on the following precedents:— 16.1. The Hon'ble Supreme Court in Vijay Dhanuka v. Najima Mamtaj, (2014) 14 SCC 638, has observed as under: “12. The words “and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction” were inserted by Section 19 of the Code of Criminal Procedure (Amendment) Act (Central Act 25 of 2005) w.e.f. 23-6-2006. The aforesaid amendment, in the opinion of the legislature, was essential as false complaints are filed against persons residing at far-off places in order to harass them. The note for the amendment reads as follows: “False complaints are filed against persons residing in far-off places simply to harass them. In order to see that innocent persons are not harassed by unscrupulous persons, this clause seeks to amend subsection (1) of Section 202 to make it obligatory upon the Magistrate that before summoning the accused residing beyond his jurisdiction he shall enquire into the case himself or direct investigation to be made by a police officer or by such other person as he thinks fit, for finding out whether or not there was sufficient ground for proceeding against the accused.” The use of the expression “shall” prima facie makes the inquiry or the investigation, as the case may be, by the Magistrate mandatory. The word “shall” is ordinarily mandatory, but sometimes, taking into account the context or the intention, it can be held to be directory. The use of the word “shall” in all circumstances is not decisive. Bearing in mind the aforesaid principle, when we look to the intention of the legislature, we find that it is aimed to prevent innocent persons from harassment by unscrupulous persons from false complaints. Hence, in our opinion, the use of the expression “shall” and the background and the purpose for which the amendment has been brought, we have no doubt in our mind that inquiry or the investigation, as the case may be, is mandatory before summons are issued against the accused living beyond the territorial jurisdiction of the Magistrate.” 16.2. The Hon'ble Apex Court in Lalita Kumari v. Govt. of U.P., (2014) 2 SCC 1, has observed as under: “51. In Khub Chand [Khub Chand v. State of Rajasthan, AIR 1967 SC 1074], this Court observed as under: (AIR p. 1077, para 6) 6. … The term ‘shall’ in its ordinary significance is mandatory and the court shall ordinarily give that interpretation to that term unless such an interpretation leads to some absurd or inconvenient consequence or be at variance with the intent of the legislature, to be collected from other parts of the Act. The construction of the said expression depends on the provisions of a particular Act, the setting in which the expression appears, the object for which the direction is given, the consequences that would flow from the infringement of the direction and such other considerations.” 16.3. The Apex Court has further observed in May George v. Special Tahsildar, (2010) 13 SCC 98: “23. In State of Haryana v. Raghubir Dayal [(1995) 1 SCC 133], this Court has observed as under: (SCC pp. 135-36, para 5) “5. The use of the word ‘shall’ is ordinarily mandatory, but it is sometimes not so interpreted if the scope of the enactment, on consequences to flow from such construction, would not so demand. Normally, the word ‘shall’ prima facie ought to be considered mandatory, but it is the function of the court to ascertain the real intention of the legislature by a careful examination of the whole scope of the statute, the purpose it seeks to serve and the consequences that would flow from the construction to be placed thereon. The word ‘shall’, therefore, ought to be construed not according to the language with which it is clothed but in the context in which it is used and the purpose it seeks to serve. The meaning has to be ascribed to the word ‘shall’ as mandatory or as directory, accordingly. Equally, it is settled law that when a statute is passed for the purpose of enabling the doing of something and prescribes the formalities which are to be attended for the purpose, those prescribed formalities which are essential to the validity of such thing would be mandatory. However, if by holding them to be mandatory, serious general inconvenience is caused to innocent persons or the general public, without very much furthering the object of the Act, the same would be construed as directory.” 16.4. The purpose of Section 105 of the said Act is only with respect to an enquiry with regard to a person alleged to have a mental illness or not. The aforesaid provision creates a statutory right in favour of any person who claims to have a mental illness as provided for under Section 2(s) of the said Act. The mandatory nature of the said provision does not leave any discretion with the competent Court, in case such a claim is made during the judicial process pending before it. The mandate of the Section is that, in case of such a claim, the competent Court shall refer the same to the concerned Board as provided for in the said Section. The Competent Court cannot prejudge the said claim before making appropriate directions under the said Section. 10. Section 2(1)(s) Mental Healthcare Act defines mental illness as a substantial disorder of thinking, mood, perception, orientation, or memory, that grossly impairs judgment, behaviour, or capacity to recognise reality or ability to meet the ordinary demands of life. In the present case, the appellant has filed a certificate issued by the Hope Foundation, certifying that she is suffering from schizophrenia, a mental illness that comprises delusions and hallucinations. Her judgment and reality testing are impaired. Thus, the certificate prima facie satisfies the requirement of Section 2 (1) (s) of the Mental Healthcare Act. Since the respondent has disputed the mental condition of the appellant, the Court is bound to refer the question of the applicant’s mental health to the Mental Health Review Board in terms of Section 105 of the Mental Healthcare Act. 11. It was submitted that the applicant/appellant had filed a civil suit by herself through her General Power of Attorney. She had appeared before the Court and deposed as a witness. She had pursued the first appeal by herself and had instituted the present appeal before this Court without invoking the provisions of Order XXXII of the CPC. These are the matters to be appreciated while deciding the regular second appeal. In the present proceeding, the applicant has claimed herself to be suffering from mental illness, and this question has been disputed by the respondent. Therefore, it is necessary to refer it to the Mental Health Review Board as per Section 105 of the Mental Healthcare Act. 12. In view of the above, the present application is allowed, and the Mental Health Review Board, Chamba, is requested to examine the appellant/applicant regarding her mental illness and submit a report in terms of Section 105 of the Mental Healthcare Act. The present application stands disposed of. (Rakesh Kainthla) Judge 14th July, 2026 (Nikita)