Civil Procedure Code, 1908 -
Order XXXII Rule 15 - Unsoundness of mind of the defendant - No enquiry was
conducted - the wife of the defendant sought permission to permit her to act as
next friend - Held, In the case of a defendant under a disability, the request
should be to appoint a guardian and not a next friend. The judgment and decree
passed by the court below without conducting an enquiry and without appointing
a guardian for the defendant and without the defendant himself filing any
written statement or participating in the trial, cannot be sustained and is,
accordingly, set aside.
PRESENT: THE HONOURABLE
MR.JUSTICE V.RAMKUMAR & THE HONOURABLE MR.JUSTICE K.HARILAL
TUESDAY, THE 6TH DAY OF MARCH
2012/16TH PHALGUNA 1933
R.F.A. No. 345 of 2011
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OS.191/2008 of SUB
COURT,NEYYATTINKARA
APPELLANT(S)/APPELLANT/DEFENDANT:
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KRISHNANKUTTY, S/O. MADHAVAN,
RESIDINAG AT DRAVIDATHIL, KUTTARA, KUNNANADU OTTASEKHARAMANGALAM, (V),
NEYYATTINKARA (T) THIRUVANANTHAPURAM, REP.BY HIS NEXT FRIEND & WIFE
AJITHAKUMARI,W/O.KRISHNANKUTTY DRAVIDATHIL,KUTTARA
BY ADVS.SRI.V.SURESH
SRI.G.SUDHEER SRI.K.A.JIBIN JOSEPH
RESPONDENT(S)/PALINTIFF:
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VEENA M.G., DAUGHTER OF
GIRIJAKUMARI, V.S.BHAVAN, KURAVARA DESOM,OTTASEKHARAMANGALAM VILLAGE,
NEYYATTINKARA TALUK THIRUVANANTHAPURAM DISTRICT.
By Advs. M/s. S.V.PREMAKUMARAN
NAIR and R.T.PRADEEP
J U D G M E N T
In this appeal filed through his
next friend under Sec. 96 read with Order XLI Rule 1 C.P.C., the appellant who
was the sole defendant in O.S. 191 of 2008 on the file of the Subordinate
Judge's Court, Neyyattinkara, challenges the Judgment dated 12-11-2010 passed
by the Subordinate Judge in the above suit.
THE PLAINTIFF'S CASE
2. In the aforementioned suit
instituted by the respondent herein she inter alia alleged as follows:- The
plaint schedule property admeasuring 32 cents of land in Ottasekharamangalam
Village was acquired by the defendant as per Ext. B1 sale deed dated 4-7-1983 .
On 16-07-2008 the defendant executed Ext.A1 agreement in favour of the
plaintiff agreeing to sell the plaint schedule property within three months
thereof for a price fixed at the rate of Rs. 12,000/- per cent. The total sale
consideration payable was Rs. 3,84,000/-. The plaintiff paid a sum of Rs.
25,000/- as advance. The plaintiff, on different dates, requested the defendant
to measure out the property and to execute the sale deed. But the defendant did
not do so. Hence, the plaintiff issued Ext.A2 lawyer notice dated 30- 07-2008
calling upon the defendant to execute the sale deed on or before 6-8-2008. The
defendant did not accept the notice. The defendant committed breach of contract
by entering into another agreement for sale with one Babusenan. The plaintiff
is ready and willing to perform her part of the agreement and has the necessary
funds. A decree for specific performance of the contract may, therefore, be
passed.
DEFENCE OF THE DEFENDANT'S WIFE
3. Ajithakumari, the wife of the
defendant styling herself as the next friend of the defendant filed a written
statement contending inter alia as follows:- The defendant is a person of
unsound mind and his wife may be granted permission to file a written statement
on his behalf. The defendant did not execute any agreement in favour of the
plaintiff and does not have the mental capacity to execute any such agreement.
The defendant did not receive any advance amount. The contract is not
enforceable at the instance of the plaintiff. The suit may, therefore, be
dismissed.
THE TRIAL
4. The trial Court did not
consider the request of Ajithakumari to grant her permission to act as the next
friend (actually it should have been a request for permission to act as
guardian) of the defendant who was alleged to be a person of unsound mind. That
Court, however, settled the issues on the basis of the written statement filed
by Ajithakumari and proceeded to try the suit on merits without a demur from
the side of the plaintiff as well. After trial, the court below passed the
impugned judgment and decree in the suit as prayed for. The learned Subordinate
Judge inter alia recorded the following findings:-
i) The defendant has not filed a
vakalath or written statement. The written statement filed by Ajithakumari, the
wife of the defendant is not proper. (paras 11 and 12)
ii) No enquiry under Order XXXII
Rule 15 C.P.C. was conducted with regard to the alleged unsoundness of mind
since the wife of the defendant did not make any application for the same.
Hence it is to be presumed that the defendant is capable of defending the suit.
(Para 12)
iii) Ext. A4 judgment and A5
decree in O.S. 694 of 2008 on the file of the I Addl. Munsiff's Court,
Neyyattinkara and the testimony of DW2 show that the defendant has no mental
incapacity. Ext.A4 judgment reveals that in the enquiry conducted with regard
to the alleged mental incapacity of the defendant it was held that the
defendant was not suffering from any unsoundness of mind. (para 14)
iv) The execution of Ext.A1
agreement for sale or the receipt of advance amount, are not denied in the
written statement. (Para 11).
v) Ext.A1 agreement for sale is
proved by P.Ws 1 and 2 and, therefore the plaintiff is entitled to specific
performance of Ext.A1 agreement. (para 16) It is the said judgment which is
assailed in this appeal filed through next friend.
5. We heard Advocate Sri. V.
Suresh, the learned counsel appearing for the appellant and Adv. Sri. R.T.
Pradeep, the learned counsel appearing for the respondent/plaintiff.
ARGUMENT ON BEHALF OF THE
RESPONDENT/PLAINTIFF
6. Advocate Sri. R.T. Pradeep appearing
for the respondent made the following submissions before us opposing the
appeal:- It is true that the court below did not conduct an enquiry under Order
XXXII Rule 15 C.P.C. nor did the Court formally pass an order rejecting the
request of Ajithakumari to permit her to act as the next friend of the
defendant. But that is only a curable irregularity as was held in Ahammad
Pillai v. Subaida Beevi - 1985 KLT 845. In fact, in an earlier suit, O.S. No.
694/2008 filed by the defendant herein before the Munsiff's Court,
Neyyattinkara, the application filed by the wife of the defendant for
permission to act as the next friend of the defendant herein was declined by
the learned Munsiff as evidenced by Ext.A4 judgment. That order precludes the
defendant herein from raising the very same contention. DW2 who is none other
than the brother-in-law of the defendant has admitted that the defendant is not
suffering from unsoundness of mind. The judgment and decree passedby the court
below, therefore, do not call for any interference.
JUDICIAL EVALUATION
7. We are afraid that we find
ourselves unable to agree with the above submissions made on behalf of the
respondent/plaintiff. Even according to the court below no enquiry under Order
XXXII Rule 15 C.P.C. was conducted on the alleged unsoundness of mind of the
defendant. Similarly, the court below has held that the defendant has not filed
any vakalath or written statement. In the written statement filed by
Ajithakumari, the wife of the defendant, she had sought permission to permit
her to act as next friend of her husband who was alleged to be of unsound mind.
In the case of a defendant under a disability, the request should be to appoint
a guardian and not a next friend to represent such a defendant. Even if
Ajithakumari did not file any separate application for conducting an enquiry
under Order XXXII Rule 15 C.P.C. as stated in the judgment, from the averments
in the written statement filed by her itself, an enquiry under Order XXXII Rule
15 C.P.C. was inevitable. Any finding entered against the defendant in the
trial of the suit in which the defendant did not participate and in which he
had not entered appearance through counsel or had filed a written statement,
cannot bind the defendant. The finding in Ext.A4 suit is admittedly not final
and the matter is pending in appeal before the Sub Court, Neyyattinkara in A.S.
No. 144 of 2004. In the case of appointment of a next friend for a plaintiff
who is alleged to be incapable of protecting his rights by reason of
unsoundness of mind or mental infirmity, there need only be some prima facie
proof to prove the infirmity. There is no necessity for conducting a detailed
enquiry under Order XXXII Rule 15. (Vide Marci Celine D-Souza v. Renie
Fernandez - 1998 (1) KLT 888). But the position is not the same if such a person
figures as the defendant in a suit and a decree is obtained against him without
a guardian appointed for him. It is well settled that a decree against a
lunatic without a guardian being appointed to represent such lunatic, is a
nullity and it is not even necessary to set aside such decree and a prayer for
declaration that such decree is null and void will be sufficient. See the
decision of the Full Bench of this Court in Pankajaksha Kurup v. Fathima - 1998
(1) KLT 668. The decision in Ahammed Pillai's case relied on by the learned
counsel for the respondent has no application to a situation like the present.
That was a case where a suit was filed showing the age of the plaintiff as 19
years. After entering appearance, the defendant filed a petition under Order
XXXII Rule 2 C.P.C.. alleging that the plaintiff was a minor and she should
have been represented by a next friend and requested that the plaint be taken
off the file. Thereupon the plaintiff filed an application for appointment of a
next friend. After hearing both sides, the learned Munsiff allowed the
plaintiff's application and turned down the defendant's request. The defendant
challenged before the High Court the dismissal of his application. It was on
those facts situation that this Court held that it was only an irregularity
which was curable by the same court as was done in that case. That decision
cannot obviously apply to the facts of the present case.
8. In the light of the foregoing
discussion, the judgment and decree passed by the court below without
conducting an enquiry under Order XXXII Rule 15 and without appointing a
guardian for the defendant (if that was necessary) and without the defendant
himself filing any written statement or participating in the trial, cannot be
sustained and is, accordingly, set aside. The court below shall dispose of the
suit afresh. The appellant/defendant shall file an application for formal
permission to appoint a guardian for him in the court below within two weeks of
the date fixed herein below for appearance of the parties. The said application
shall be disposed of in accordance with law. In case the court below finds that
the defendant is a person of unsound mind, a guardian who does not have any
interest adverse to that of the defendant shall be appointed to represent the
defendant. Such guardian can be Ajithakumari, the wife of the defendant, in
case, she satisfies the requirements of law. In case, the wife of the defendant
or any other person is appointed as the guardian of the defendant, it shall be
open to the guardian to adopt the written statement which was already filed in
the case or file any amendment thereto. If after enquiry, the court below comes
to the conclusion that the defendant is not a person of unsound mind, in that
case the defendant shall be permitted to file a written statement within such
time fixed by the court below. The suit shall, thereafter, be disposed of in
accordance with law after giving both sides an opportunity of being heard.
9. This appeal is disposed of
accordingly. The parties shall appear before the court below without any
further notice on 2- 4-2012. It is made clear that we shall not be understood
as having decided the question of the alleged disability of the
appellant/defendant merely because this appeal filed by him through his wife as
next friend has been entertained by this Court. An endeavour shall be made by
the court below to dispose of the suit expeditiously and at any rate within six
months of the date fixed for appearance. No costs.
