The court upheld the appointment of a next friend for a plaintiff suffering from advanced dementia, confirming the necessity of medical evaluation in determining mental capacity.

JUDGMENT

The above original petition is filed seeking to set aside Ext.P9 order.

2. It is averred that the above original petition is filed by the

2nd defendant in O.S.No.5/2022, the suit filed for cancellation of registered gift deed bearing No.3061/2011 dated 24.12.2011 and registered settlement gift deed No.46/2012 dated 05.01.2012 executed by the 1st respondent. The petitioner and respondent Nos. 3 & 4 are the children of the plaintiffs/respondents 1 and 2 herein. On the contention that the petitioner had fraudulently colluded with the help of the scribe, the attesting witnesses and the Sub Registrar and executed settlement gift deed taking undue advantage of the mental condition of the plaintiffs, the suit was filed seeking cancellation of registered deed and settlement gift deed. Along with the suit, the 2nd respondent filed I.A.No.2 of 2022 under Order XXXII Rule 15 of Code of Civil Procedure (CPC), seeking permission to file the suit on behalf of the 1st respondent/1st plaintiff. According to the 2nd respondent, the 1st respondent is now suffering from Alzheimers and dementia and thus not in a good disposing state of mind. The petitioner has filed a written statement wherein he contended that an application under Order XXXII Rule 15 CPC filed will not lie since the 1st respondent is not having any mental illness. The issues were framed and a particular issue No.3 regarding the mental status of the 1st respondent was raised. Thereupon I.A.No.4 of 2023 was filed by the 2nd respondent to refer the 1st respondent before the Medical Board at the District Hospital, Kanhangad. The said application was allowed and the 1st respondent was referred to the Medical Board and Ext.P8 report was submitted by the Medical Board. Later, as per Ext.P9 order, I.A.No.2 of 2022 was allowed permitting the 2nd respondent to file the suit on behalf of the 1st respondent. The grievance now raised by the petitioner is that an application under Order XXXII Rule 15 CPC cannot be filed seeking to appoint the 2nd respondent as a next friend since the 1st respondent is not of unsound mind. It is also contended that there is an earlier order whereby the 2nd respondent was permitted under Order XXXII Rule 15 CPC to conduct the suit on behalf of the 1st respondent and that without any application from any parties, the court has once again passed another order in I.A.No.2/2022. The said action is perse illegal. It is aggrieved by the same that the present original petition has been filed.

3. A perusal of Ext.P9 order would reveal the following circumstances:

The court after hearing the petitioners' counsel and upon perusing the case records, passed an interim order dated 24.02.2022, permitting the 2nd plaintiff to act as next friend of the 1st plaintiff. However, reserved the right of the defendants to challenge the mental condition of the 1st plaintiff at appropriate stage. The defendants, after their appearance, filed a counter denying all contentions in the affidavit and contended that the 1st plaintiff is mentally sound. As there is a dispute regarding the mental condition of the 1st plaintiff, the court directed the 2nd plaintiff to produce the 1st plaintiff and on examination, the Court found that he is not able to move around without the help of others and he is not even able to say his name and therefore, he was referred to a Medical Board. After examination, Ext.P8 report was filed by the Medical Board stating that he has neurocognitive impairment and also has features of advanced dementia and that he is fully dependent on a caregiver for carrying out his activities of daily living. Having considered the Medical Report, and also the personal examination by the Court, it was found that the 1st plaintiff is not in a sound disposing state of mind and he is not able to file the suit and to conduct the same and therefore, the petition was allowed permitting the 2nd plaintiff to act as next friend of the 1st plaintiff till the disposal of the suit.

4. A pe