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2014 DIGILAW 673 (KER)

Katavath Valappil Mohanan v. Tharammal Ranjith

2014-08-20

B.KEMAL PASHA

body2014
Judgment 1. Aggrieved by the remand order passed by the Additional District Court, Thalassery through judgment dated 25.06.2013 in A.S.No.39/2005, the respondent/plaintiff has come up in appeal. 2. A.S.No.39/2005 was filed by the defendant in O.S.No.92/2003 of the Subordinate Judge's Court, Payyannur. The plaintiff in the suit is one Mohanan aged 53, who is illiterate and unsound minded. His wife Santha aged 42 has represented him in the suit as his next friend under Order XXXII Rule 15 of the Code of Civil Procedure, 1908 by alleging that the said Mohanan is suffering from mental illness and has been undergoing medical treatment for mental illness continuously. An affidavit was filed by the said next friend, when the plaint was presented before the trial court by affirming that she has no interest adverse to that of the plaintiff. It seems that the trial court permitted the next friend to present the plaint for and on behalf of the plaintiff. Another I.A. as I.A. No.1229/2003 was also filed by the next friend along with the plaint for receiving the plaint as well as the I.A. seeking an order of temporary injunction along with it. In the affidavit in support of that I.A. also, it has been stated that the next friend has filed the suit for and on behalf of the plaintiff. It seems that on the date of filing itself, the trial court allowed the said I.A. 3. The case of the plaintiff is that he had title and possession over the plaint schedule properties in which a building was also put up. According to the next friend, on 28.08.2003 while she along with her son were doing some minor works in the newly constructed house situated in the plaint schedule property, the defendant appeared there and told them that he had obtained the sale deed in respect of that property and building from the plaintiff on 11.08.2003. Then only she came to know about such a sale deed. According to the next friend, the plaintiff was suffering from severe mental illness and, therefore, he could not have executed any document by exercising his fee consent. It was also alleged that a meagre consideration of Rs.75,000/- alone was mentioned in the document even though the property was worth rupees lakhs and lakhs, and even that amount shown in the sale deed was also not paid by the defendant to the plaintiff. It was also alleged that a meagre consideration of Rs.75,000/- alone was mentioned in the document even though the property was worth rupees lakhs and lakhs, and even that amount shown in the sale deed was also not paid by the defendant to the plaintiff. Immediately, she applied for getting a copy of the document allegedly executed, and on getting the copy, she rushed to the trial court with the suit. The suit was filed for the cancellation of the said sale deed which the defendant got executed from the plaintiff and for a decree of perpetual injunction restraining the defendant from trespassing into the plaint schedule property. 4. The defendant contended that the plaintiff is not a mentally ill person and he had no such mental illness as alleged. According to him, he purchased the property from the plaintiff by paying the consideration shown in the document. 5. On the side of the plaintiff, PWs 1 to 4 were examined and Exts.A1 series, A2 and A3 were marked. On the side of the defendant, the defendant alone was examined as DW1 and Exts.B1 to B15 were marked. The learned Subordinate Judge decreed the suit with costs, thereby cancelling Ext.B1 sale deed and passing a decree of perpetual injunction as prayed for. Aggrieved by the said judgment and decree dated 20.11.2004, the defendant filed A.S. No.39/2005 before the District Court, Thalassery. 6. The learned Additional District Judge allowed the appeal by setting aside the judgment and decree passed by the Subordinate Judge's Court and remitted the suit to the Subordinate Judge's Court for conducting an enquiry as contemplated under Order XXXII Rule 15 CPC and to record a specific finding on that point. It was also ordered that thereafter, the trial court shall proceed with the suit in accordance with law. Aggrieved by the said remand order, the plaintiff has come up in appeal. 7. Heard the learned counsel for the appellant Sri.C.Vathsalan and the learned counsel for the respondent Sri.P.S.Sreedharan Pillai. The learned counsel for the appellant has argued that the remand order passed by the lower appellate court directing the trial court to conduct an enquiry as contemplated under Order XXXII Rule 15 CPC and to record a specific finding on that point, is not at all legally sustainable. The learned counsel for the appellant has argued that the remand order passed by the lower appellate court directing the trial court to conduct an enquiry as contemplated under Order XXXII Rule 15 CPC and to record a specific finding on that point, is not at all legally sustainable. It is also argued that the said direction is against the spirit of the legislation in respect of Order XXXII Rule 15 CPC. It is further argued that after the lapse of 11 years, no purpose would be served in making such a remand, especially when specific medical evidence relating to the mental illness of the plaintiff was adduced before the trial court. Per contra, the learned counsel for the respondent has argued that the trial court had committed a grave error in not conducting an enquiry as contemplated under Order XXXII Rule 15 CPC and such an enquiry ought to have been conducted by the trial court for noting down the then existing mental status of the plaintiff. 8. It seems that there is specific allegation in the plaint that the plaintiff has been suffering from chronic illness and that he has been undergoing treatment for the same. It seems that before the trial court documentary evidence showing such treatment for mental illness of the plaintiff for the period from 1992 to 2003 were also produced. Moreover, PW3 Doctor, who has been treating the plaintiff for mental illness, was also examined before the trial court. He identified the plaintiff who was present in court as the person who was being treated by him. 9. The lower appellate court has relied on the decision in Rasheeda Vs. Nazeer [ 2011 (3) KLT 218 ], wherein it was held: "Every suit instituted by a minor or by a person adjudged, before or during the pendency of the suit, to be of unsound mind or by a person who, though not so adjudged, is found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting his interest when suing or being sued, shall be instituted by a next friend on behalf of the plaintiff. Every person has a right to institute a suit if he has a cause of action for the same. If such a person is a minor or a person of unsound mind, a next friend can institute the suit on his behalf. Every person has a right to institute a suit if he has a cause of action for the same. If such a person is a minor or a person of unsound mind, a next friend can institute the suit on his behalf. A decision rendered in such suit shall be binding on the plaintiff. If the plaintiff is not a person adjudged to be of unsound mind, R.15 of O.XXXII of the Code of Civil Procedure provides that the court shall make an enquiry to ascertain whether the plaintiff is incapable, by reason of any mental infirmity, of protecting his interests. Allowing a next friend to institute a suit on behalf of a person on the ground that such person is of unsound mind or a person having mental infirmity, really affects the status of the plaintiff if really he is a person capable of suing. Grant of such permission by the Court would certainly affect his civil rights. An inbuilt safeguard is made in R.15 of O.XXXII to make an enquiry for the purpose of satisfaction of the Court as to whether the plaintiff is incapable of filing the suit by himself or whether a next friend should be allowed to institute the suit on his behalf. If it is found that the plaintiff has no mental infirmity or any other infirmity warranting permission to be granted for the next friend to sue on his behalf, necessarily, no permission can be granted to institute the suit by the next friend. Only on finding that the plaintiff is incapable to institute the suit as provided under law, the Court would allow the next friend to institute and to prosecute the suit. Such an enquiry is mandatory." It was a case wherein one of the daughters of one Abdul Razak Kunhu had filed the suit against his wife, son and another daughter, styling herself as his next friend challenging certain documents executed by Abdul Razak Kunhu in favour of his wife, son and another daughter. The said Abdul Razak Kunhu had appeared before the trial court in person and submitted that the said suit was instituted without his knowledge. It was in that scenario, the aforesaid decision was rendered. The said Abdul Razak Kunhu had appeared before the trial court in person and submitted that the said suit was instituted without his knowledge. It was in that scenario, the aforesaid decision was rendered. It is true that such an inquisition through an adjudication within the meaning of Order XXXII Rule 15 CPC is prescribed in order to protect the interest of the actual person who is coming as plaintiff or as defendant. When such a person having mental disability, who is styled as a person of unsound mind, comes up to sue, he shall be represented by a next friend. When such a person comes up to defend a suit, he shall be represented by a guardian. Such an adjudication as contemplated under Order XXXII Rule 15 CPC is incorporated mainly for protecting the interest of such unsound minded person. If on adjudication, it is found that he is mentally ill or of unsound mind, and is not capable to prosecute his rights or to defend his rights, he shall be permitted to sue through next friend or to be sued through a guardian, as the case may be. On such adjudication, if it is found that he is capable of suing himself, the next friend shall not be permitted to represent him. Similarly, if it is found that he is capable of defending his rights, any guardian shall not be appointed for him. When such a capable person who has no infirmity is there, or even if he has some sort of mental illness and if it is found that he is capable of protecting his interest, any next friend or guardian shall not be imposed or thrust upon him. 10. The lower appellate court has further relied on the decision in Raveendran Vs. Sobhana [2008 (1) KLT 488], wherein it was held: "The decision under O. 32 R.15 involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken away, and a guardianship being thrust upon him. In such circumstances, the court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests. In such circumstances, the court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests. If that person is not capable of protecting his interests on his own, the court has an obligation to protect his interests by appointing a next friend and if such person is capable of protecting his own interests, the court has equally an obligation to see that a next friend or guardian is not superimposed on him, thereby depriving him of his right to take his own decisions." The said decision was rendered in a case wherein the wife filed a petition for maintenance against the appellant husband who was deaf and dumb. 11. It is true that the legislative indent under such an adjudication as one contemplated under Order XXXII Rule 15 is for protecting the interest of such person. Even if an order appointing a person as next friend or as a guardian may affect the status and the interests of the person in respect of whom such next friend or guardian represents, such unsound minded person will be bound by the result of the suit. Therefore, if it is found that he is capable of protecting his interest, any next friend or guardian shall not be appointed, as he will always be answerable to the acts of such next friend or the guardian, as the case may be. That is why such an adjudication has been prescribed in Order XXXII Rule 15 CPC. 12. When it has come out that the appellant is a person who is in need of treatment on account of mental illness, the provisions of Mental Health Act, 1987 are also applicable in his case, as he is a mentally ill person within the meaning of Section 2(l) of the Mental Health Act, 1987. Of course, the provisions from Sections 50 to 59 are also applicable in the case of such a mentally ill person for getting a guardian appointed for him and also for getting a Manager appointed for his properties. 13. The learned counsel for the appellant has invited the attention of this Court to the decision in Raj Kumar Vs. Of course, the provisions from Sections 50 to 59 are also applicable in the case of such a mentally ill person for getting a guardian appointed for him and also for getting a Manager appointed for his properties. 13. The learned counsel for the appellant has invited the attention of this Court to the decision in Raj Kumar Vs. Rameshchand [ AIR 1999 SC 3511 ], wherein it was held in paragraphs 5 and 6 as follows:- "5. Sections 52 to 55 are contained in Chapter VI of the Mental Health Act, 1987. This Chapter contains provisions relating to "Judicial inquisition regarding alleged mentally ill person possessing property, custody of his person and management of his property." Section 50 provides for an application being made for holding an inquisition with regard to the mental condition of a person which is alleged to be mentally ill and is possessed of property. Such an application can be filed only by the persons or authorities specified in Clauses (a) to (d) of sub-section (1) of Section 50. It is pursuant to the proceedings so initiated that the other provisions of the Chapter including Sections 52 to 55 would apply. Section 50 does not contemplate any application being made or a contention being raised by a tenant in a proceeding for eviction against him. 6. In the instant case what was applicable was Order 32, Rule 1 read with Rule 15. An application for appointment of a guardian in accordance with the said provisions was filed. An application to this effect was filed before the Rent Controller and the father was appointed as the guardian and next friend of the appellant. Nothing more was required to be done and the High Court, in our opinion, was in error in coming to the conclusion that the Eviction Petition was not maintainable and the procedure provided by Sections 52 to 55 of the Mental Health Act, 1987 had not been complied with." The Apex court has held that even in such a case, the provisions of Order XXXII Rule 15 are applicable. 14. In Ahammad Pillai Vs. Subaida Beevi [ 1985 KLT 845 ], it was held in paragraph 6 that:- "Law, as a general principle, treats acts of a minor which are for his benefit on the same footing as acts of an adult. 14. In Ahammad Pillai Vs. Subaida Beevi [ 1985 KLT 845 ], it was held in paragraph 6 that:- "Law, as a general principle, treats acts of a minor which are for his benefit on the same footing as acts of an adult. Only those acts of a minor which are against his interests are not permitted by law. At page 105 of Daniell's Chancery Practice, 6th Edn., it is stated "an infant's supposed want of discretion and his inability to bind himself, and make himself liable for costs" is mentioned as the reason why no proceeding can be taken by an infant without assistance of a next friend. It is certainly open to the defendant to bring the minority of the plaintiff and his lack of representation to the notice of the Court. R.2 of Order XXXII enables the defendant to have the plaint taken off the file. It is open to the defendant to waive bis objection, in which case he cannot raise the objection later on. R.2 does not state that in all such cases the plaint must be taken off the file. When an application is submitted by the defendant to have the plaint taken off the file on account of the fact that the suit is instituted by a minor without a next friend, the Court has a duty to hear all the parties concerned and pass an order "as it thinks fit". The Rule confers a wide discretion on the Court in the matter. It is open to the Court to direct the plaint to be taken off the file. At the same time, it is open to the Court to ensure that the next friend is appointed and to allow the suit to be continued. In these circumstances, it cannot be said that a suit instituted by a minor without intervention of a next friend is a nullity and the defect cannot be rectified. It is a curable irregularity, curability depending upon the facts and circumstances of the case. Where on account of an error or a bona fide mistake such an irregular suit is instituted, there is no reason why the irregularity cannot be cured by providing for a suitable person as the next friend." It was also therein that even if a next friend was not appointed, it cannot be said that the defect cannot be rectified. Where on account of an error or a bona fide mistake such an irregular suit is instituted, there is no reason why the irregularity cannot be cured by providing for a suitable person as the next friend." It was also therein that even if a next friend was not appointed, it cannot be said that the defect cannot be rectified. It is a curable irregularity depending upon the facts and circumstances of that particular case. It has to be noted that in this case, before the trial court, elaborate evidence was adduced by the next friend of the plaintiff to prove that the plaintiff was undergoing treatment for mental illness. It seems that detailed discussions were made by the trial court in the judgment and decree also. When it was proved that the plaintiff was undergoing treatment for mental illness for the period from 1992 onwards, any further necessity to have a formal adjudication within the meaning of Order XXXII Rule 15 does not arise after the lapse of more than 11 years of the institution of the suit. It seems that a formal order was not passed by the trial court when the plaint was presented and the suit was instituted by taking up the plea relating to the mental illness of the plaintiff. Even when there is no such formal order, it is only an irregularity which could be cured. It seems that the plaintiff could cure such an irregularity when elaborate evidence was adduced through PW1 and PW3 and also through documentary evidence to prove that he was undergoing treatment for mental illness. 15. In Marci Celine D'Souza Vs. Renie Fernandez [ 1998 (1) KLT 888 ], it was held in paragraph 7 that – "The court is not expected to conduct an elaborate enquiry under O. XXXII R. 15 of the Code of Civil Procedure. Before a next friend can represent a person in-capable of protecting his rights it is not necessary that there should be a preliminary enquiry and a finding that person by reason of unsoundness of mind or mental infirmity is incapable of protecting his interests. All that is needed is that there must be some prima facie proof such as to satisfy the court that the person was by reason of infirmity incapable of protecting his interest, because an order permitting the next friend to represent such a person is not final. All that is needed is that there must be some prima facie proof such as to satisfy the court that the person was by reason of infirmity incapable of protecting his interest, because an order permitting the next friend to represent such a person is not final. It is always open to the defendants to take out another application to have the order revoked when the court can fully go into the matter." 16. It seems that the lower appellate court just as a short cut evolved a method to set the cloth back for more than 11 years by unnecessarily compelling a further preliminary adjudication within the meaning of Order XXXII Rule 15 CPC. Such a stage had gone even 11 years ago. The lower appellate court ought not to have attempted to set the cloth back for 11 years unnecessarily. In this matter, the suit was allowed to be instituted and the parties had proceeded with it. Elaborate evidence relating to the mental illness of the plaintiff was adduced. A full fledged trial was conducted and the judgment and decree were passed. In such a case, at any stretch of imagination, the lower appellate court ought not to have set aside the judgment and decree passed by the trial court for remitting the matter to the trial court just for a formal preliminary adjudication under Order XXXII Rule 15 CPC. It is evident that the present remand is for the purpose of a remand only, and not for any fruitful purpose. 17. The lower appellate court ought to have gone into the merits of the appeal and decided the appeal. When the stage of Order XXXII Rule 15 CPC had gone 11 years ago, the lower appellate court ought not have remitted the matter for that purpose. The impugned judgment cannot be treated as a lawful remand within the meaning of Order XLI Rules 23, 23A and 25 CPC. Matters being so, the impugned judgment is liable to be set aside, as the lower appellate court has not considered the appeal on merits. On other questions, except the one under Order XXXII Rule 15, this Court is not expressing any opinion on merits with regard to the appeal. Of course, this appeal could have been disposed of by this Court on merits; at the same time, the ultimate loser will have to lose an opportunity of one Forum. On other questions, except the one under Order XXXII Rule 15, this Court is not expressing any opinion on merits with regard to the appeal. Of course, this appeal could have been disposed of by this Court on merits; at the same time, the ultimate loser will have to lose an opportunity of one Forum. Therefore, by finding that any further adjudication under Order XXXII Rule 15 is not contemplated in the matter, the appeal is revived and the same is remitted to the lower appellate court for fresh disposal in accordance with law on merits. In the result, this appeal is allowed and the impugned judgment is set aside. The appeal is revived and the same is remitted to the court below for fresh disposal in accordance with law on merits. The lower appellate court need not again consider the question relating to any adjudication under Order XXXII Rule 15 CPC. The parties shall appear before the lower appellate court on 24.09.2014. They are permitted to appear through counsel also. Being an old appeal, the court below shall make every endevour to dispose of the appeal, as expeditiously as possible, at any rate, within three months from the date of receipt of this judgment. The Registry is directed to transmit all the records back to the lower appellate court at the earliest.