IMPORTANT POINT
The court established that an inquiry is mandatory under Order 32 Rule 15 CPC to determine if a party is incapable of protecting their interests due to mental infirmity before appointing a next friend.

JUDGMENT :

NUPUR BHATI, J.

1. Though the matter is listed in the fresh category however, on joint request of the counsel for the parties, the matter is being heard today itself.

2. This writ petition has been filed under Article 226 and 227 of the Constitution of India with the following prayers:

“(i) by an appropriate writ, order or direction; an order dated 01.03.2024 (Annex.-5) may kindly be quashed and set aside.

(ii) by an appropriate writ, order or direction; an application (Annex.-3) of the Petitioner under Order 32 Rule 4, 5, 15 and read with Sec. 151 of CPC may kindly be Allowed.

(iii) Any other appropriate order or direction, which this Hon'ble Court considers just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.”

3. Brief facts of the case are that the performa respondent No. 4-plaintiff preferred a suit for Specific performance of contract, cancellation of gift deed and for Perpetual Injunction against the Respondent-defendants on the ground that respondent No. 1 possessed an agricultural land at khasra No. 121 admeasuring 14 bigha 1 biswa, Khasra No. 121 /1 admeasuring 3 bigha 12 biswa, khasra No. 122 admeasuring 17 bigha 19 biswa and Khasra No. 122/1 admeasuring 12 bigha and total land being 47 Bigha 12 biswa at Chak-1, Patwar Mandal Jajiwal, Tehsil and district Jodhpur which the respondent agreed to sell the aforementioned land in dispute to the petitioner through an agreement dated 15.07.2021 for consideration of an amount of rupees 90 lacs. Thereafter, in pursuance of the same, the plaintiff requested the respondent No. 1 to execute the sale deed which was denied by the respondent No. 1 and thus, the plaintiff preferred the aforementioned suit (Annex.1).

4. Thereafter the respondents No 1 and 2 filed a joint written statement (Annex.2) and denied all the contentions stated in the plaint and also raised preliminary objections in regard to maintainability of the suit.

5. At the stage of plaintiff evidence, the petitioner filed an application dated 07.02.2024 (Annex.3) under Order 32 Rule 4, 5 and 15 CPC for appointment of next friend of the plaintiff-performa respondent due to her old age and medical grounds. Thereafter the respondent No. 1 and 2 filed reply (Annex.4) to the aforementioned application.

6. The learned trial court rejected the application filed by the petitioner vide order dated 01.03.2024 (Annex.5). Thus the petitioner aggrieved of the order dated 01.03.2024 has preferred this writ petition.

7. Learned counsel for the petitioner submits that the order dated 01.03.2024 (Annex.5) is arbitrary illegal and against the settled preposition of law as laid down under Order 32 Rule 4 and 15 CPC, as the petitioner being an old lady of age 88 having such medical conditions that she is not in a position physically and mentally both to attend the court and contest the case by herself and therefore, the application for appointment of a next friend for her was wrongly rejected. He further submits that the suit filed in the trial court is that of the plaintiff herself and thus no prejudice will be caused to the respondent if next friend is appointed by the trial court as any delay if is caused then the same would affect only the plaintiff.

8. Learned counsel for the petitioner also submits that the plaintiff is of unsound mind and in this situation the court is empowered to appoint a guardian when he/she is incapable of protecting his/her rights when suing or being sued by reason of mental infirmity therefore the application filed by the petitioner under Order 32 ought to be allowed. The provisions of Order 32 Rule 4 and 15 CPC are reproduced here as under:

“ORDER XXXII - Suits by or against minors and persons of unsound mind:

4. Who may act as next friend or he appointed guardian for the suit:

(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

Provided that the interest of such person is not adve