Krishnankutty v. Veena M.G.

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE V.RAMKUMAR & THE HONOURABLE MR.JUSTICE K.HARILAL TUESDAY, THE 6TH DAY OF MARCH 2012/16TH PHALGUNA 1933 RFA.No. 345 of 2011 ( ) ----------------------OS.191/2008 of SUB COURT,NEYYATTINKARA ## APPELLANT(S)/APPELLANT/DEFENDANT: -------------------------------- 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: ------------------------ 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 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 0603-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CR ## V. RAMKUMAR & K. HARILAL, JJ. ........................................................ R.F.A. No. 345 of 2011 ......................................................... ## Dated: 6-03-2012 ## JUDGMENT 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 R.F.A. No. 345 of 2011 -:2:- property within three months thereof for a price fixed at the rate of ` 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 3007-2008 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 R.F.A. No. 345 of 2011 -:3:- 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 R.F.A. No. 345 of 2011 -:4:- 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:- R.F.A. No. 345 of 2011 -:5:- 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 R.F.A. No. 345 of 2011 -:6:- 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 R.F.A. No. 345 of 2011 -:7:- 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 R.F.A. No. 345 of 2011 -:8:- 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 R.F.A. No. 345 of 2011 -:9:- 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 R.F.A. No. 345 of 2011 -:10:- 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. Dated this the 6[th] day of March, 2012. Sd/-V. RAMKUMAR, JUDGE. Sd/-K. HARILAL, JUDGE ani/ /true copy/ P.S. to Judge