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2023 Supreme(Online)(KER) 25612
HIGH COURT OF KERALA
C.S. DIAS, J
RAJASREE, – Appellant
Versus
SANTHAKUMARI, – Respondent
OP(C) 1663 2020
V.C.MADHAVANKUTTY, SRI.P.RAMACHANDRAN
Mental infirmity can be recognized under Order 32 Rule 15 as affecting a person's cognitive abilities, warranting the appointment of a next friend.
Headnote:
Mental Capacity - Civil Procedure - Order 32 Rule 15 - The court upheld the appointment of a next friend for a party deemed mentally infirm, confirming that mental infirmity may differ from unsoundness of mind, relying on precedents and clarifying definitions influencing the judgement.
Fact of the Case:
The case involved a petition challenging the appointment of a next friend for a plaintiff alleging mental incapacity, despite previous evidence indicating the plaintiff's capability to testify in another case.
Finding of the Court:
The court found no illegality in the appointment of the next friend, affirming that the lower court thoroughly evaluated all evidence before concluding that the plaintiff was incapable of independently protecting her interests.
Issues: Whether the lower court's appointment of a next friend was legally justified given the evidence of the plaintiff's mental condition.
Ratio Decidendi: The court established that mental infirmity encompasses conditions affecting cognitive functions, necessitating protection without declaring a party unsound of mind.
Final Decision: The original petition was dismissed.
JUDGMENT
Aggrieved and confronted with Ext P2 order dated
15.9.2020 in OS No.8/2015 by the Court of the Subordinate Judge, Chavakkad, the fifth defendant in the suit has filed the original petition. The respondents are the second plaintiff and defendants 1 to 4, 6 and 7 in the suit. The first plaintiff is reported dead.
2. The concise background facts leading to Ext P2 order are:
(i) The first respondent and her late brother-Dileep, filed the above suit, against the petitioner and respondents 2 to 7, for cancellation of a document, declaration and other consequential reliefs.
(ii) During the pendency of the suit, the first respondent and her late brother filed an application under Order 32 Rule 15 of the Code of Civil Procedure (in short, “Code”), to appoint a next friend for them. (iii) The court below, after conducting an enquiry as prescribed under Order 32 Rule 15 of the Code, allowed the application and appointed a next friend for the first respondent and her late brother.
(iv) Aggrieved by the appointment, the petitioner filed OP(C)No.2026/2015 before this Court. By Ext P1 judgment, this Court set aside the order of appointment and directed the court below to reconsider the matter afresh.
(v) The plaintiffs examined PWs 1 to 7 and marked Exts A1 to A13 and the defendants examined DW1 and marked Exts B1 to B10 in evidence. Exts X1 to X1(c)
were marked as court Exhibits.
(vi) The court below, by the impugned Ext P2 order, concluded that the first respondent and her late brother were incapable of independently protecting their interest.
(vii) The court below has failed to appreciate the fact that the first respondent had given evidence as a witness in CC No.847/2004 before the Judicial First Class Magistrate Court, Kunnamkulam, a case registered against the petitioner and other defendants in the suit. The deposition of the first respondent undoutedly reveals that she is not a person of unsound mind.
(viii) Ext P2 order is palpably wrong and unsustainable in law. Hence, the original petition.
3. Heard; Sri.V.C Madhavankutty, the learned counsel appearing for the petitioner and Sri.P.Ramachandran, the learned counsel appearing for the first respondent.
4. The question is, whether there is any illegality in Ext P2 order.
5. The suit was originally filed by the first respondent and her late brother as POP No.15/2004 before the Court of the Subordinate Judge, Thrissur, as indigent persons.
6. During the course of the proceedings in 2015, the first respondent and her late brother filed an application to appoint a next friend for them, to protect their interest in the suit, on the assertion that they are persons with mental infirmity.
7. By proceeding dated 6.4.2015, the court below found that the first respondent and her late brother were persons with mental infirmity and were incapable of independently protecting their interest to prosecute the suit. Accordingly, the court below appointed a next friend for them under Order 32 of the Code.
8. Aggrieved by the said proceeding, the petitioner filed OP(C)No.2026/2015 before this Court. By Ext P1 judgment, this Court allowed the original petition as follows:
“4. xxx xxx xxx xxx It appears from Ext.P1 that the court below did not consider the report of medical examination of the plaintiff. Since the court below did not consider the report of the medical examination of the plaintiff before passing Ext.P1 order, I am inclined to set aside Ext.P1 order and direct the court below to consider the matter afresh, in accordance with law. It is ordered accordingly.
5. The question of furnishing the security shall be considered subject to the result of the order, which will be passed by the court below under Order XXXII Rule 15, for which the petitioner will have to file a fresh application before the court below. Needless to state that the court below shall consider the entire materials on record, in accordance with law, before passing order afresh under Order XXXII Rule 15.
This Original Petition stands dispo
