IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 4627 of 2008(A)
1. THEKKE KOODANCHALIL JANAKI, W/O.
... Petitioner
Vs
1. T.K.VISWAN, S/O. RAMOTTY,
... Respondent
2. T.K.MOHANAN, S/O. RAMOTTY,
3. T.K.SHOBHANA, D/O. RAMOTTY,
4. T.K.SHYLAJA, D/O. RAMOTY,
5. THE FEDERAL BANK LTD.,
6. M.BIJU, S/O. KUNHIKRISHNAN NAIR,
For Petitioner :SRI.V.V.SURENDRAN
For Respondent :SRI.MOHAN JACOB GEORGE
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :27/08/2008
O R D E R
M. SASIDHARAN NAMBIAR, J.
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W.P.(C) NO. 4627 OF 2008
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Dated this the 27th day of August, 2008
JUDGMENT
This petition is filed under Article 227 of Constitution of
India challenging Ext.P3 order passed by Sub Court, Kozhikode
in I.A.4761 of 2007, an application filed under Rule 15 of Order
XXXII of Code of Civil Procedure for conducting an inquisition to
enable the plaintiff to be represented through the next friend.
Under Ext.P3 order, learned Munsiff dismissed the application
with costs of respondents 5 and 6.
2. Learned counsel appearing for petitioner and
respondents No.5 and 6 were heard.
3. Learned counsel appearing for petitioner argued that
when the suit is instituted by the plaintiff claiming that she is
not mentally sound and that to decide that fact Court is bound to
conduct an inquiry as provided under Rule 15 of Order XXXII of
Code of Civil Procedure and as the inquiry was not conducted,
Ext.P3 order is to be quashed.
4. Learned counsel appearing for respondents argued
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that I.A.4761 of 2007 was filed only as an attempt to protract the
order of injunction obtained exparte against the respondents
and even if an order under Rule 15 of Order XXXII of the Code is
passed, the order is not binding on the defendants and
defendants are entitled to contend that plaintiff is not of
unsound mind and cannot be represented through the next
friend and if such a contention is raised, Court is bound to frame
an issue and thereafter permit the parties to adduce evidence
and decide that issue and in such circumstances there is no
necessity to conduct an inquiry as sought for in I.A.4761 of
2007. Learned counsel appearing for sixth respondent
submitted that even if Ext.P3 order is to be interfered, trial
Court may be directed to dispose the suit expeditiously.
5. When a plaint is presented by a person claiming to be
the next friend of the plaintiff, on the allegation that either
plaintiff is of unsound mind or is not capable by reason of mental
infirmity to protect her interest, Court is bound to conduct an
inquiry. Rule 15 of Order 32 provides that the Rules 1 to 14,
which relate to minor, would apply to a person of unsound mind
and also to persons who are by reason of mental infirmity is
unable to protect their interest. It is not disputed that the
WP(C)4627/08 3
learned Sub Judge did not conduct an inquiry while the suit was
instituted so as to decide whether plaintiff could be permitted to
be represented through the next friend. As no inquiry was
conducted, learned Sub Judge is directed to consider I.A.4761 of
2007 and decide the question whether the plaintiff is entitled to
be represented through a next friend as provided under Rule 15
of Order XXXII of Code of Civil Procedure. If the Court finds
that plaintiff cannot be represented through next friend, then
the suit as such may not lie and the learned Sub Judge is to pass
appropriate order. If it is to be found that plaintiff is to be
permitted to be represented through next friend, in the light of
the written statement filed, learned Sub Judge necessarily has to
frame necessary issues and proceed with the trial.
Writ petition is disposed of as above.
M. SASIDHARAN NAMBIAR,
JUDGE
Okb/-