IMPORTANT POINT
The court upheld the trial court's decision, finding no evidence of mental infirmity in the plaintiff, thus dismissing the writ petition.

ORDER :

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 06.05.2024 (Annex.-7) may kindly be quashed and set aside;

ii). by an appropriate writ, order or direction; a separate order sheet dated 06.05.2024 (Annex.-8) may kindly be quashed and set aside;

iii) 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.

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

v) Costs of the writ petition may kindly be awarded to the Petitioner.”

3. Brief facts of the case are that the performa respondent no.4 had preferred a suit for specific performance of contract, cancellation of gift deed and perpetual injunction against the defendant/respondents 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 respondents no. 1 and 2 agreed to sell the aforementioned land in dispute to the respondentno. 4 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). In response to this plaint (Annex.1), the respondent no. 1 and 2 submitted a joint written submission (Annex.2) while denying the averments of the plaint.

4. After the matter was posted for recording plaintiff’s evidence, the petitioner/applicant submitted an application under Order XXXII Rule 4, 5 and 15 of the Code of Civil Procedure, 1908 (‘CPC’) for the appointment of a next friend of the plaintiff, which was rejected by the learned Trial Court vide order dated 01.03.2024 (Annex.5). Subsequent thereto, the petitioner/applicant preferred a writ petition before this Court bearing number 5064/2024 while praying to direct the learned Trial Court to decide the application filed by the petitioner/plaintiff afresh by holding an enquiry under Order XXXII Rule 15, which came to be allowed vide order dated 04.04.2024 (Annex.6).

5. Thereafter, the learned Trial Court, after conducting the enquiry, rejected the application filed by the petitioner/applicant vide order dated 06.05.2024 (Annex.7). Aggrieved of the order passed by the learned Trial Court dated 06.05.2024 (Annex.7), the petitioner has preferred this writ petition.

6. Learned counsel for the petitioner submits that the learned Trial Court has erred in rejecting the application of the petitioner for appointing him as the next friend to the respondent no. 4/plaintiff, inasmuch as there would be no harm caused to the respondents on account of such appointment of the son of respondent no.4/plaintiff as her next friend, when the respondent no.4/plaintiff is a senior citizen, aged 87 years, and is not in the position to contest the case as per her best ability.

7. Learned counsel for the petitioner further submits that the learned Trial Court has not adhered to the order passed by this Court, inasmuch as even though the learned Trial Court has observed that the respondent no.4/plaintiff had started loosing sight and hearing capacity, however the learned Trial Court has not taken into consideration her physical and mental condition, and rejected the application file