JUDGMENT :

(Prayer: Judges Summons filed under Order XIV Rule 8 of the Original Side Rules read with Section 151 of the Code of Civil Procedure to set aside order passed in Application No.9502 of 2019 in C.S.No.552 of 2019 and to restore the above application on file and dispose the same on merits.)

1. The above application has been filed for setting aside the order dated 21.01.2020 in and by which this Court has permitted N.Dillibabu to act as a next friend of K.Dillibabu, the 2nd defendant in the above suit. It is necessary to briefly touch upon the facts which have preceded the filing of this application.

2. The respondents 1 to 6 herein had filed the suit C.S.No.552 of 2019 against the applicant and the 2nd defendant who though not described as a person of unsound mind either in short or long cause title, is in the body of the plaint described as a person suffering from severe intellectual disability. The suit is filed for a partition and separate possession of the plaint schedule properties by allotting 1/6th share each to the plaintiffs 1 to 3 and a 1/18th share each to the plaintiffs 4 to 6.

3. The suit has been filed on 06.09.2019 and thereafter an application in A.No.9502 of 2019 has been filed by the named guardian of the 2nd defendant for permitting him to act as a next friend of the 2nd defendant for contesting the suit. The applicant herein would contend that the application in A.No.9502 of 2019 has been allowed by this Court without hearing her and that too on the basis of no objection given by the respondents 1 to 6 herein. The applicant would contend that there is a collusion between the plaintiffs, namely, the respondents 1 to 6 herein and the proposed next friend of the 2nd defendant, the 7th defendant herein. A reading of the order would show that the applicant herein was neither heard nor was the counter of the applicant on file. Along with the application for setting aside this ex parte order the applicant has filed the counter.

4. The applicant would contend that the procedure as contemplated under law for appointing the next friend and Guardian of the 2nd defendant, a person of an unsound mind/intellectual disability has not been followed. During the course of the arguments, the learned counsel for the applicant would further submit that the suit itself has been filed showing the 2nd defendant as being represented by the next friend and it is only after the suit was numbered and notice had been gone to the parties that the application has been moved by the very same person who is described as the next friend to permit him to act as a next friend of the 2nd defendant for contesting the suit. He would therefore contend that the procedure contemplated for appointment of the guardian for the mentally challenged defendant has been thrown to the winds.

5. The respondents 1 to 6 alone have filed their counter in which the 1st ground of objection is that the applicant having failed to appear before this Court on the date of hearing cannot be re-heard by way of an application to set aside the order. They would also contend that the next friend has been appointed in keeping with procedure contemplated under Rule 111 of the Civil Rules of Practice. The learned counsel for the respondents 1 to 6 would only reiterate the contents of their counter affidavit and state that since Rule 111 of the Civil Rules of Practice contemplates that only a person who is not a party opposing the interest of the mentally challenged person can be appointed as a guardian the 7th respondent has been appointed as guardian of the 2nd defendant.

6. Heard the learned counsels and perused the papers.

7. Considering the fact that the 2nd defendant is stated to be a person of an unsound mind/suffering an intellectual disability, this Court being parens patriae of the person is bound to ensure that his interest are fully protected. The onus is moreso because the 2nd defendant is not described as a person of unsound mind but only as a person suffering fr