IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 34182 of 2008(T)
1. ABDUL SALAM, S/O. SUBAIR ROWTHAR,
... Petitioner
Vs
1. YUSUFF RAWTHAR,
... Respondent
2. NUSAIFA BEEVI,
For Petitioner :SRI.DEVAN RAMACHANDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.P.BALACHANDRAN
Dated :21/11/2008
O R D E R
K.P. Balachandran, J.
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W.P.(C)No.34182 of 2008 T
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JUDGMENT
Heard counsel for the petitioner/defendant. As
per Exhibit P1 order in C.R.P.No.1037/03, this Court
found that the wife of the first respondent/ plaintiff,
who is the second respondent herein, is not competent
to be appointed as guardian, as she opposed the
application of the plaintiff as matters then stood.
This Court further observed that the trial court may
appoint some other person as the next friend of the
plaintiff.
2. According to the learned counsel for the
petitioner, in the meanwhile, it so happened that after
passing of Exhibit P1 order, the suit was dismissed
without any action from the part of the court below to
appoint a court guardian or to appoint some one else as
guardian. Thereafter, the second respondent filed
Exhibit P2 application for restoration of the suit and
thereupon, vide Exhibit P3 order, the court below
restored the suit.
WPC 34182/08 2
3. It is vehemently contended before me by the
learned counsel for the petitioner that on Exhibit P2
application filed by the second respondent, who is the
wife of the first respondent, the suit should not have
been restored, as pursuant to Exhibit P1 order, she was
incompetent to act on behalf of the first respondent/
plaintiff. The submission, no doubt, is true. But, all
the same, the fact remains that without complying with
the direction of this Court in Exhibit P1 order, it so
happened that the trial court dismissed the suit for
default. The procedure, no doubt, is irregular and
improper. But the court below should have, on Exhibit
P1 being brought to its notice, suo motu restored the
suit and acted according to the directions contained in
Exhibit P1 order. The restoration of the suit viewed in
that angle deserves to be upheld. It is the further
contention of the petitioner that Exhibit P4 order was
passed consequent on Exhibit P3, whereby, the trial
court held that the first respondent/plaintiff is
physically and mentally fit to conduct the case and
there is no necessity to appoint a next friend.
WPC 34182/08 3
4. The question as to whether the plaintiff
requires a next friend to be appointed as guardian to
prosecute the suit is a matter on which the trial court
is competent to conduct an enquiry. It is seen that
the court below has passed Exhibit P4 consequent on his
entering a finding that the plaintiff is physically and
mentally fit to conduct the case after recording his
sworn statement. The question of appointment of a next
friend as guardian as directed by this Court arises
only in the event of necessity of appointing a guardian
existing even at the time of passing of Exhibit P4 in
November 2008. Exhibit P1 order was passed on 8.4.2005
when this Court had occasion to observe that despite
the contention of the present petitioner, who is the
defendant in the suit, that the first respondent is not
of unsound mind, in the circumstances available in the
case and the evidence adduced in the case, it is not
clear whether the plaintiff will be able to take
decision of his own on merits and that it can be found
only after evidence is taken in the suit. The evidence
that is made mention of in Exhibit P1 order is
certainly not regarding the evidence on merits of the
WPC 34182/08 4
claim in the case, but, evidence regarding the
competency of the plaintiff to protect his own
interest. Exhibit P4 order shows that the court below
recorded the sworn statement of the first respondent/
plaintiff and got convinced that the first respondent
is physically and mentally fit to conduct the case and
that there is no necessity to appoint a next friend.
5. The prayer in this writ petition is only to
quash Exhibit P3, which I have already found is not
liable to be quashed as even otherwise the suit
deserved to be restored suo motu. Exhibit P4 is a
consequential order and the petitioner having produced
that also before this Court, to avoid further
controversy, this Court is confirming the said order as
well.
This writ petition is disposed of as above.
21st November, 2008 (K.P.Balachandran, Judge)
tkv