M.K. Raghavan v. Moodan Kuthirummal Karthiyani

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **TUESDAY, THE 31[ST] DAY OF AUGUST 2021 / 9TH BHADRA, 1943** **FAO (RO) NO. 15 OF 2021** **AGAINST THE DECREE/JUDGMENT DATED 03/04/2018 IN AS 10/2016 OF SUB** ## **COURT, PAYYANNUR** **AGAINST THE DECREE/JUDGMENT DATED 23/12/2015 IN OS 112/2012 OF** **MUNSIFF COURT, PAYYANNUR** ## **APPELLANT/RESPONDENT IN A.S./DEFENDANT:** **M.K.RAGHAVAN, AGED 64 YEARS,** **SON OF KALLLANI M.K. (LATE), RESIDING AT PAYYANUR AMSOM, THAYINERI DESOM, PAYYANNUR P.O. KANNUR DISTRICT 670 307.** **BY ADVS. C.MURALIKRISHNAN (PAYYANUR) SRI.ABRAHAM GEORGE JACOB SHRI.AKSHAY R** ## **RESPONDENT/APPELLANT IN A.S./PLAINTIFF:** **MOODAN KUTHIRUMMAL KARTHIYANI (DEAF AND DUMP), AGED 56 YEARS, DAUGHTER OF LATE MOODAN KUTHIRIMMAL MANIKKAM, RESIDING A T PAYYANUR AMSOM, THAYINERI DESOM, PAYYANUR P.O. TALIPARAMBA TALUK, REPRESENTED BY HER NEXT FRIEND, UNCLE SREEDHARAN M.K., AGED 80 YEARS, SON OF T.K. KUNHIKANNAN VAIDYAR (THAYAMBATH), RESIDING A T PAYYANUR AMSOM, THAYINERI DESOM, PAYYANUR P.O., PIN 670 307.** **BY ADVS.** **SRI.M.V.AMARESAN SRI.S.S.ARAVIND** **THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING COME UP FOR ADMISSION ON 31.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 **FAO (RO) NO. 15 OF 2021** ## **CR** ## **JUDGMENT** The judgment and decree of the trial court were set aside by the first appellate court on the sole reason that there is non-compliance of the requirement under Order XXXII CPC to institute a suit through a next friend. The suit was instituted by the next friend of a deaf and dumb lady after obtaining sanction under Order XXXII CPC in I.A. No.872/2012. The order of sanction was not challenged by the defendant, but proceeded with the suit and participated in the trial till the passing of judgment and decree by the trial court. The sanction granted under Order XXXII CPC to institute a suit through a next friend was also taken up by framing three issues by the trial court and answered positively, but the suit was dismissed by adjudicating the disputes involved. In the Appellate Court, the sanction granted under Order XXXII CPC to institute a suit through next friend alone was taken up and found that there is non-compliance of the requirement 3 **FAO (RO) NO. 15 OF 2021** under Order XXXII Rule 15 CPC and set aside the judgment and decree by allowing the appeal and remanded the matter back to the trial court to decide the suit afresh. It is against the said judgment and decree of the first appellate court remanding the matter back to the trial court, the defendant came up. 2. It is submitted that it is not proper on the part of the appellate court to set aside and remand the matter back to the trial court for fresh adjudication without adjudicating the correctness of the finding rendered on the issues involved in the suit. Before going into the said question, it is necessary to address the scope and ambit of Order XXXII CPC, the sole ground taken up by the appellate court to set aside the judgment and decree of the trial court. 3. Order XXXII CPC is an enabling provision, precautionary in nature and intended to protect the interest of a person of minor or a person of unsound mind, when it is found necessary to represent either a minor or a person of an unsound mind, in a legal proceeding. As the minor is deemed incapable of prosecuting or defending a 4 **FAO (RO) NO. 15 OF 2021** suit by himself, it is necessary that his interests in the suit should be protected through a competent person. Such a person is, in the case of a minor plaintiff, called his next friend and in the case of a minor defendant, his guardian _ad litem_ or, guardian for the suit. Once permission was granted under Order XXXII CPC, it would acquire the character of a final order, though an interlocutory application is permissible for that purpose. The scope of enquiry under Rule 15 of Order XXXII cannot be equated with that of an enquiry or inquisition under the provisions of special enactment – Indian Lunacy Act or Mental Health Act. The word 'next friend' is nowhere defined in the Code. But the concept is well explicit from Rule 1 of Order XXXII CPC. It is the nomenclature given to a person, who represents a minor or a person of unsound mind in a suit or proceeding. A conjoint reading of various Rules under Order XXXII CPC would make it clear that it really deals with a pre-requirement to be complied with to effectuate valid institution of a suit or to defend a suit for and on behalf of a minor or a person of unsound mind. Provisions were made to deal with the 5 **FAO (RO) NO. 15 OF 2021** appointment of a guardian or to institute a suit through a next friend, removal of guardian, retirement of next friend, appointment of new one and also for furnishing security so as to meet the cost of proceeding or court fee payable etc. till the end of proceeding, including appeals, revision, execution of decree etc. It is the procedural law dealing with the requirements to be complied with in the institution of a suit by minor or a person of unsound mind, to proceed with or to defend a suit on behalf of a minor or a person of unsound mind. In short, Order XXXII CPC is a self contained Code by its nature dealing with the procedural law to represent a minor or a person of unsound mind in a legal proceeding. Hence the proceedings under Order XXXII CPC has to be considered as an independent parallel proceeding and cannot be mixed up with the subject matter and the issues involved in the suit, unless it includes a question of prejudice that can be caused either to the minor or the person of unsound mind on account of the person either acting as a next friend or a guardian, as the case may be. Hence every order under Order XXXII CPC should be treated 6 **FAO (RO) NO. 15 OF 2021** as separate and independent apart from the disputes and issues involved in the suit. In fact, it is not a preliminary issue as such, but a pre-requirement either to maintain a suit or to defend it for and on behalf of a minor or a person of unsound mind and hence every order passed under Order XXXII CPC will be final, unless it is challenged separately as if it were a final order and it will not merge in the final adjudication of the suit or appeal as in the case of an interlocutory order. After attaining finality of an order under Order XXXII CPC, the said question cannot be taken up again in the final stage of the suit or in the judgment. It is wholly impermissible to go into the said question at the final stage of adjudication of the suit. Hence it cannot be a ground either to dismiss the suit or to decree the suit. It is not within the jurisdiction of first appellate court to take up the said question and to decide it in an appeal preferred against the judgment and decree of trial court. Hence, the impugned judgment of first appellate court cannot be sustained. 4. Further, the non-compliance of the requirement 7 **FAO (RO) NO. 15 OF 2021** under Order XXXII CPC would be, at the most, an irregularity and it is not at all necessary to conduct an inquisition as mandated under the special enactment viz. The Mental Health Act, 1987, or such other enquiry as mandated under the Indian Lunacy Act. The appointment of a next friend or guardian does not conclude that the person for or against whom the proceeding is conducted is a minor or a person of unsound mind. What is required is only a subjective satisfaction regarding the incapability of a minor or a person of unsound mind to institute or to defend a suit properly. It can even be extended to a person, who is not capable of protecting his interest on account of any other infirmity, though he is not a minor or a person of unsound mind. The application of Order XXXII CPC is so wide enough and not confined only to person of minor or lunatic, but to all persons, who are not capable of protecting their interests on account of any other ailments. For example, a person in a coma stage would also come under the purview of Order XXXII CPC. The High Court of Lahore in **Nanakchand v. Banarsi [AIR 1930 Lah 425 : (1931) ILR 12 Lah 65 : 126 IC 579]** and the High 8 **FAO (RO) NO. 15 OF 2021** Court of Madras in **Re Periaswami Gounden (AIR 1954 Mad 810)** had the occasion to consider the extensive application of Order XXXII CPC and laid down that it can be even extended to a person not capable of protecting his interest by himself, though he is not a minor or a person of unsound mind. 5. It is also settled by this court in **Lekshmikutty** **Amma v. Mathew [1954 KLT SN 13, C.No.37]** that the non- compliance of the requirement under Order XXXII CPC is only an irregularity and it will not affect the validity of the decree, unless it is proved that an insane person was prejudiced as a result of the irregularity. 6. Yet another ground is also available to non-suit the appellant on the reason that the sanction accorded under Order XXXII CPC was not brought under challenge till the culmination of the suit in a judgment and decree, but participated in the trial of the suit and hence he cannot, on a later stage of the suit, challenge the validity or the propriety of the order granting sanction to institute the suit through a next friend or against the appointment of a guardian and he would stand estopped by his conduct. 9 **FAO (RO) NO. 15 OF 2021** 7. The judgment and decree of the first appellate court cannot be sustained and hence the same is set aside. The first appellate court shall consider the appeal on merits attending all the issues involved, for which the parties shall appear before the first appellate court on 16.09.2021. The first appellate court shall dispose of the appeal within a time schedule of three months from the date of appearance of the parties. The appeal is allowed accordingly. ## **Sd/-** ## **P.SOMARAJAN** **JUDGE** msp