The main legal point established is that the appointment of a next friend for a mentally retard person does not require a separate application or proceeding, and a pending proceeding under the Mental Health Act does not bar the suit from proceeding.

Mrs. Sunita Agarwal, J.

1. By means of the present petition, the order dated 16.09.2016 passed by the Civil Judge (J.D) 1st, Baghpat, in original suit no.204 of 2011, in rejecting application 63-Ga moved by the defendant is under challenge. The revisional order dated 04.04.2017 passed in Civil Revision no.32 of 2016 is also been challenged.

2. The aforementioned suit has been filed by one Sri Virendra Singh son of late Raghuvir Singh through his wife and next friend Smt. Satto against the defendant/petitioner. The petitioner moved an application 63-Ga with the contention that the suit filed through next friend Smt. Satto by the plaintiff was not maintainable in as much as, the proceeding under sections 50 and 54 of the Mental Health Act 1987 for appointment of guardian of the plaintiff Sri Virendra Singh was pending.

3. The contention of the petitioners was that the application under Section 7 of Guardian and Wards Act, 1890 for appointment of Guardian moved by Smt. Satto was rejected on 04.03.2016. Whereas another proceeding under the Mental Health Act, 1987 was pending. Smt. Satto had never been appointed as next friend of the plaintiff by a competent court of law and, therefore, the suit was not competent.

4. This application was rejected by the order dated 16.09.2016 wherein it is categorically recorded that no evidence was filed by the petitioner/defendant before the court below so as to prove that the interest of the plaintiff is not vested in Smt. Satto or the interest of Smt. Satto i.e. wife of the plaintiff was in conflict with the interest of the plaintiff Sri Virendra. It is also recorded by the court below that the plaintiff has filed a disability certificate paper no.13-Ga which had been issued by the competent authority and no exception can be taken thereof by the Court. With these finding, the court below has opined that Smt. Satto can pursue the suit being next friend to the plaintiff Sri Virendra and the suit is competent to proceed, accordingly.

5. These findings are challenged in the present petition with the contention by the learned counsel for the petitioner that during pendency of the proceeding under the Mental Health Act, 1987, it was not open for the court below to appoint Smt. Satto as next friend to the plaintiff Sri Virendra. As per own case of the plaintiff, no Guardian as on the day, had been appointed by the competent court under the relevant legal provision.

6. To deal with this submission of learned counsel for the petitioner, it would be pertinent to go through the provision of section 52 of the Mental Health Act, 1979 which deals with the appointment of guardian of a "mentally ill" person. The word "mentally ill person" has been defined in section 2(1) of the said Act. Section 2(1) and section 52 of the Mental Health Act, 1987 are re-produced as under;-

"2(1) "mentally ill person" means a person who is in need of treatment by reason of any mental disorder other than mental retardation"

52. Provision for appointing guardian of mentally ill person and for manager of property.-

(1) Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is incapable of taking care of himself and of managing his property, it shall make an order for the appointment of a guardian under section 53 to take care of his person and of a manager under section 54 for the management of his property.

(2) Where the District Court records a finding that the alleged mentally ill person is in fact mentally ill and is incapable of managing his property but capable of taking care of himself, it shall make an order under section 54 regarding the management of his property.

(3) Where the District Court records a finding that the alleged mentally ill person is not mentally ill, it shall dismiss the application.

(4) Where the District Court deems fit, it may appoint under sub-section (1) the same person to be the guardian and manager."

7. A careful reading of the aforesaid provision g