Point of Law: Legal position is that mental infirmity in the context of Order XXXII Rule 15 of CPC is not mental person able of protecting his interests, is sufficient to unfold the protective umbrella under Order XXXII Rule 15 of CPC

ORDER :

K.LAKSHMAN, J.

CIVIL REVISION PETITION No.1389 of 2021

This Civil Revision Petition, under Article 227 of the Constitution of India, is filed challenging the Order, dated 26.03.2021, passed in I.A.No.514 of 2019 in O.S.No.64 of 2014, by the Senior Civil Judge, Nirmal, wherein the said application was dismissed.

2. Heard Sri Ganta Ramakrishna, learned counsel for the petitioner and Sri Mahesh Raje, learned counsel for the respondent. Perused the record.

3-a. The petitioner herein had filed the above suit against the respondent herein seeking declaration of title and recovery of possession and for rectification of the entries in the revenue records. The said suit was posted for evidence of the petitioner herein. At this stage, the petitioner herein had filed an application vide I.A.No.514 of 2019 under Order XXXII Rule 15 read with Section 151 of the Code of Civil Procedure, 1908 ( for short, ‘the CPC’) in the said suit, seeking to appoint Sri M.Satish Kumar, his son, as his next friend to prosecute the said suit. The petitioner herein had filed the said application on the ground that his health has been effected badly. Once he was having stroke in the brain and as a result of it, partially effected with paralysis. Therefore, he is unable to hear even after fixing ear aid and even talk properly. He was undergoing treatment for the said infirmities. In view of the said infirmities, it is impossible to him to represent the case for which he sought to appoint his son as his next friend.

3-b. The respondent herein filed counter denying all the allegations made in the plaint and contended that the provisions under Order XXXII Rule 15 of CPC does not apply to the present case, since the petitioner is not a mentally infirm person or a lunatic. Since last six years, he has been prosecuting the suit. He has also filed examination in chief in the month of August, 2019. The petitioner has also filed rejoinder along with an interlocutory application to seek permission for filing the rejoinder. The petitioner also filed an application vide I.A.No.369 of 2019 to amend the schedule of the property on the ground that he noticed incorrect boundaries while preparing an affidavit in lieu of examination in chief on 02.08.2019. On 28.03.2019, the petitioner appointed his son as General Power of Attorney and filed I.A.No.128 of 2019 under Rule 32 of the Civil Rules of Practice, with his signatures at Nirmal. Thus the petitioner came down to Nirmal to prepare all the above said application and signed at Nirmal. In view of the said circumstances, the petitioner is hale and healthy and no next friend needs to be appointed for him. The medical reports filed by the petitioner are created for the purpose of the present case and he has filed the present case intentionally to avoid his cross-examination.

3-c. The Court below vide order dated 26.03.2021 dismissed the said application vide I.A.No.514 of 2019 by holding that the petitioner herein has not filed any record to show that he is suffering with paralysis and he has filed only certificates issued by Dr. K.Kishore Kumar, M.D., stating that he is suffering with “Cerabro vascular accident”. The petitioner did not file medical report in support of the said decease. The case of the petitioner is not that he is deaf and dumb and there is no evidence to show that he is suffering with slight paralysis. The plaintiff filed his suit through GPA who was examined as P.W.1 and the petitioner herein seeking to appoint the same person as his next friend. There is no evidence of any unsoundness of mind, or he is not suffering with any physical disabilities affecting his cognitive skills. With the said findings, the Court below has dismissed the said application. Feeling aggrieved by the same, the petitioner herein has filed the present Revision.

4. Learned counsel for the petitioner, referring to the list of documents filed along with the said I.A.No.514 of 2019, would submit that the petitioner herein had filed medic