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Gujarat High Court
Judgename :J.R.Vora
LEGAL HEIRS and REP.OF DECD.AMRUTABEN BUDHAJI THAKORE - Appellant
Versus
NITABEN SOMABHAI PATEL - Respondent
Civil Revision 84 of 2003
Decided On : 02/25/2003
Constitution of India - Code of Civil Procedure - Rule 2 and 15 - Application is filed against the order passed by the learned Small Causes Judge in H. R. P. Suit below an application filed by the present petitioner - Original defendants of the said Civil Suit under Order 32, Rule 2 and 15 of the Code of Civil Procedure - Plaintiff both jointly filed the abovesaid rent suit against the present petitioner for the arrears of rent as well as for eviction - In the abovesaid suit, at the stage of recording of evidence an application was preferred by the present petitioner stating that as a Power of Attorney holder - Plaintiff has maintained the abovesaid suit and entered in the witness box. Right from the filing the suit, defendants have declared that plaintiff is of unsound mind and therefore, plaintiff cannot maintain the suit and plaintiff - In capacity of Power of Attorney holder of plaintiff No. 1 also cannot maintain the suit - It was therefore in the said application, prayed that as per Order 32 Rule 2 and 15 of the Code of Civil Procedure the suit was not maintainable and suit was required to be dismissed - Plaintiff is concerned the same may not be considered to be giving authority to plaintiff No. 2 but the learned Judge observed that plaintiff had filed his reply in which he has stated that the plaintiff No. 2 was the brother of the plaintiff as well as the next friend - He also stated that he was administering all the properties of plaintiff - It was also stated in the affidavit-in-reply that plaintiff No. 2 was collecting rent from the defendant, as well as from other tenants and hence after the contention of the present petitioner the application came to be dismissed by the learned Judge. Being aggrieved by that order this Revision Application - Held, Court to permit the suit instituted by or on behalf of the minor or a person of unsound mind to be continued after taking steps to see that the next friend of the minor or a person of unsound mind is brought on record to conduct the suit. Even misdescription in a title which does not disclose that the suit is filed by a next friend of a person of unsound mind is a formal defect and can be cured, but the whole litigation cannot be thrown out on this count - Duty is cast upon the Court to direct to amend the cause title suitably in view of Rule 2, sub-rule (2) of Order 32 of Code of Civil Procedure - Prime object of incorporating these provisions is to see that the interest of a minor or a person of unsound mind must not suffer and they may be properly represented in a suit filed by them or against them - It is enough if the provision of Rule 1 is substantially complied with - Phraseology employed in Sub-rule (2) of Rule 2 that gives wide powers to the Court to make such order as the Court might think fit after hearing the objections raised by the parties concerned in the interest of minor or a person of unsound mind - Petitioner as a next friend of plaintiff who is of unsound mind - Court is not required in this case to go into and inquire about the fact that whether plaintiff No. 1 is of unsound mind because this is an admitted fact, in plaint itself - Law enjoins duty on the Court to make appropriate order so as to protect the interest of a plaintiff or defendant of unsound mind or a minor - While going through the record it becomes amply clear that all throughout the suit plaintiff who is real brother of plaintiff has acted as a next friend of plaintiff - In affidavit filed by him at he has in express terms stated that he is the next friend of plaintiff - He has further stated that he was administering all the properties collecting rent from the defendants, as well as from the other tenants and was doing all work, which was necessary to be done as a next friend - Rejection of application by the learned trial Judge was perfectly legal but in the circumstances the trial Court ought to have directed to amend the cause title suitably showing that the plaintiff has instituted suit through her next friend plaintiff and this defect as said above is an irregularity and curable - Petitioner as a next friend of plaintiff who is of unsound mind - Court is not required in this case to go into and inquire about the fact that whether plaintiff No. 1 is of unsound mind because this is an admitted fact, in plaint itself - Law enjoins duty on the Court to make appropriate order so as to protect the interest of a plaintiff or defendant of unsound mind or a minor - While going through the record it becomes amply clear that all throughout the suit, plaintiff who is real brother of plaintiff has acted as a next friend of plaintiff No. 1. In affidavit filed by him at he has in express terms stated that he is the next friend of plaintiff - He has further stated that he was administering all the properties of collecting rent from the defendants as well as from the other tenants and was doing all work which was necessary to be done as a next friend. In this view of the matter, rejection of application by the learned trial Judge was perfectly legal but in the circumstances the trial Court ought to have directed to amend the cause title suitably showing that the plaintiff has instituted suit through her next friend plaintiff No. 2, Vishnubhai and this defect as said above is an irregularity and curable - Application stands summarily rejected.
( 1 ) HEARD Mr. D. C. Dave, learned advocate for the petitioner.
( 2 ) THIS Revision Application is filed against the order passed by the learned Small Causes Judge, Ahmedabad in H. R. P. Suit No. 1993/1993 on 29th day of November, 2002 below an application Exh. 74 filed by the present petitioner, i. e. original defendants of the said Civil Suit under Order 32, Rule 2 and 15 of the Code of Civil Procedure.
( 3 ) AS per the brief facts one Nitaben Somabhai Patel, plaintiff No. 1 and Vishnubhai Somabhai Patel, plaintiff No. 2, both jointly filed the abovesaid rent suit against the present petitioner for the arrears of rent, as well as for eviction. In the abovesaid suit, at the stage of recording of evidence, an application Exh. 74 was preferred by the present petitioner stating that as a Power of Attorney holder of Nitaben, plaintiff No. 2 Vishnubhai has maintained the abovesaid suit and entered in the witness box. Right from the filing the suit, defendants have declared that plaintiff No. 1 is of unsound mind and therefore, plaintiff No. 1, Nitaben cannot maintain the suit and plaintiff No. 2, Vishnubhai, in capacity of Power of Attorney holder of plaintiff No. 1 also cannot maintain the suit. It was, therefore, in the said application, prayed that as per Order 32 Rule 2 and 15 of the Code of Civil Procedure the suit was not maintainable and suit was required to be dismissed.
( 4 ) THE learned Judge came to the conclusion that so far as the Power of Attorney given by the plaintiff No. 1 to plaintiff No. 2 is concerned, the same may not be considered to be giving authority to plaintiff No. 2 but the learned Judge observed that plaintiff No. 2 had filed his reply at Exh. 75 in which he has stated that the plaintiff No. 2 was the brother of the plaintiff No. 1, as well as the next friend. He also stated that he was administering all the properties of plaintiff No. 1. It was also stated in the affidavit-in-reply that plaintiff No. 2 was collecting rent from the defendant, as well as from other tenants and hence after negativing the contention of the present petitioner, the application Exh. 74 came to be dismissed by the learned Judge. Being aggrieved by that order this Revision Application.
( 5 ) LEARNED advocate for the petitioner, Mr. D. C. Dave referred to Rule 2 of Order 32 of Code of Civil Procedure and submitted that as per the admission of plaintiffs, plaintiff No. 1 Nitaben is of unsound mind and hence, plaintiff No. 1 can neither file suit nor maintain the same. It was submitted that the suit is not instituted by guardian or the next friend of Nitaben, plaintiff No. 1, who was the owner of the premises in question. It was submitted that the suit is not filed in capacity of a next friend of plaintiff No. 1, who was of unsound mind. The institution of the suit, itself, according to the learned advocate was wrong. It was submitted that in these circumstances plaintiff No. 2 cannot continue to maintain the suit. It was submitted that even after this clear provisions of law and admission of plaintiffs on record, the learned trial Judge erred in coming to the conclusion that the plaintiff No. 2 was next friend of plaintiff No. 1. It was submitted that as per Order 32 Rule 2 of Code of Civil Procedure the suit ought to have been taken off the file by the learned trial Judge and the application ought to have been allowed.
( 6 ) HAVING heard the learned advocate for the petitioner and having gone through the record carefully, it clearly transpires that application at Exh. 74 is filed by the present petitioner under misconception of law. In fact, there is no provision in Code of Civil Procedure authorising the Court to exercise powers to dismiss the suit, when it is filed by a person of unsound mind. Provisions of Code of Civil Procedure makes it clear that how to deal with the suit filed by or against minors or persons of unsound mind. Rule 1 of Order 32 makes provision that minor or person of unsound mind can instit
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