Rajasree, d/o Saraswathiyamma v. Santakumari and others

1 OP(C) No.1663 of 2020 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE C.S.DIAS`** ``` MONDAY, THE 13[TH] DAY OF FEBRUARY 2023 / 24TH MAGHA, 1944 ``` ## **`OP(C) NO. 1663 OF 2020`** ## **`AGAINST THE ORDER/JUDGMENT in OS 8/2015 OF SUB COURT, CHAVAKKAD`** ## **`PETITIONER/S:`** ``` RAJASREE,D/O. SARASWATHYAMMA, KANDAMKORATH HOUSE, NJAMANENGAD P.O., KUNNAMKULAM VIA, THRISSUR DISTRICT- 679563. ``` ``` BY ADV V.C.MADHAVANKUTTY ``` ## **`RESPONDENT/S:`** - `1 SANTHAKUMARI,(MENTALLY RETARDED PERSON) AGED 47 YEARS, D/O. NAMBALAT SARADHAAMMA, VALLATHOOR AMSOM AND DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT, REPRESENTED BY HER CLOSE RELATIVE RAMADEVI, AGED 52 YEARS, D/O. KRISHNA PANIKKAR, PLOT NO.48, SREEDURGA ESTATE, NEAR JEECHIMELTA, HYDERABAD-500055.` - `2 SARASWATHY AMMA,AGED ABOUT 62 YEARS, D/O. PANTHAMPULAKKAL DEVAKI AMMA, ORUMANAYOOR AMSOM DESOM, CHAVAKKAD TALUK, NOW RESIDING AT SARASWATHI AMMA, KANDAMKORATH HOUSE, NJAMANENGAD P.O., KUNNAMKULAM VIA, THRISSUR DISTRICT679563.` - `3 JSAYARAJAN,AGED 40 YEARS, S/O. SARASWATHI AMMA, 1ST RESPONDENT, -DO- NOW AT JAYARAJAN, KANDAMKORATH HOUSE, NJAMANENGAD P.O., KUNNAMKULAM VIA, THRISSUR DISTRICT679563.` - `4 JAYASREE,AGED 38 YEARS, D/O. SARASWATHI AMMA, 1ST RESPONDENT, -DO- NOW AT JAYARAJAN, KANDAMKORATH HOUSE, NJAMANENGAD P.O., KUNNAMKULAM VIA, THRISSUR DISTRICT679563.` - `5 KOCHUGOPU,AGED 36 YEARS, S/O. SARASWATHI AMMA, 1ST RESPONDENT, -DO- NOW AT JAYARAJAN, KANDAMKORATH HOUSE, NJAMANENGAD P.O., KUNNAMKULAM VIA, THRISSUR DISTRICT679563.` - `6 SURESH,AGED 25 YEARS, S/O.PANTHAMPULAKKAL MALATHYAMMA, ORUMANAYOOR AMSOM AND DESOM, KANDAMKORATH HOUSE, NJAMANENGAD P.O., KUNNAMKULAM VIA, THRISSUR DISTRICT679563.` - `7 JACOB,AGED 46 YEARS, S/O. THALAKKOTTOOR OUSEPPUNNI, VAILATHOOR AMSOM DESOM, CHAVAKKAD TALUK, PIN-679563. BY ADV SRI.P.RAMACHANDRAN - R1` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 13.02.2023, THE ``` ``` COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 OP(C) No.1663 of 2020 ## **C.S.DIAS, J.** =-=-=-=-=-=-=-=-=-=- ## **OP(C) No.1663 of 2020** =-=-=-=-=-=-=-=-=-=-=-=-=-= **Dated this the 13[th] day of February, 2023.** ## **JUDGMENT** Aggrieved and confronted with Ext P2 order dated 15.9.2020 in OS No.8/2015 by the Court of the Subordinate Judge, Chavakkad, the fifth defendant in the suit has filed the original petition. The respondents are the second plaintiff and defendants 1 to 4, 6 and 7 in the suit. The first plaintiff is reported dead. 2. The concise background facts leading to Ext P2 order are: (i) The first respondent and her late brother-Dileep, filed the above suit, against the petitioner and respondents 2 to 7, for cancellation of a document, declaration and other consequential reliefs. (ii) During the pendency of the suit, the first respondent and her late brother filed an application 3 ## OP(C) No.1663 of 2020 under Order 32 Rule 15 of the Code of Civil Procedure (in short, “Code”), to appoint a next friend for them. (iii) The court below, after conducting an enquiry as prescribed under Order 32 Rule 15 of the Code, allowed the application and appointed a next friend for the first respondent and her late brother. (iv) Aggrieved by the appointment, the petitioner filed OP(C)No.2026/2015 before this Court. By Ext P1 judgment, this Court set aside the order of appointment and directed the court below to reconsider the matter afresh. (v) The plaintiffs examined PWs 1 to 7 and marked Exts A1 to A13 and the defendants examined DW1 and marked Exts B1 to B10 in evidence. Exts X1 to X1(c) were marked as court Exhibits. (vi) The court below, by the impugned Ext P2 order, concluded that the first respondent and her late brother were incapable of independently protecting their interest. 4 OP(C) No.1663 of 2020 (vii) The court below has failed to appreciate the fact that the first respondent had given evidence as a witness in CC No.847/2004 before the Judicial First Class Magistrate Court, Kunnamkulam, a case registered against the petitioner and other defendants in the suit. The deposition of the first respondent undoutedly reveals that she is not a person of unsound mind. (viii) Ext P2 order is palpably wrong and unsustainable in law. Hence, the original petition. 3. Heard; Sri.V.C Madhavankutty, the learned counsel appearing for the petitioner and Sri.P.Ramachandran, the learned counsel appearing for the first respondent. 4. The question is, whether there is any illegality in Ext P2 order. 5. The suit was originally filed by the first respondent and her late brother as POP No.15/2004 before the Court of the Subordinate Judge, Thrissur, as indigent persons. 5 OP(C) No.1663 of 2020 6. During the course of the proceedings in 2015, the first respondent and her late brother filed an application to appoint a next friend for them, to protect their interest in the suit, on the assertion that they are persons with mental infirmity. 7. By proceeding dated 6.4.2015, the court below found that the first respondent and her late brother were persons with mental infirmity and were incapable of independently protecting their interest to prosecute the suit. Accordingly, the court below appointed a next friend for them under Order 32 of the Code. 8. Aggrieved by the said proceeding, the petitioner filed OP(C)No.2026/2015 before this Court. By Ext P1 judgment, this Court allowed the original petition as follows: “4. xxx xxx xxx xxx It appears from Ext.P1 that the court below did not consider the report of medical examination of the plaintiff. Since the court below did not consider the report of the medical examination of the plaintiff before passing Ext.P1 order, I am inclined to set aside Ext.P1 order and direct the court below to consider the matter afresh, in accordance with law. It is ordered accordingly. 5. The question of furnishing the security shall be considered subject to the result of the order, which will 6 OP(C) No.1663 of 2020 be passed by the court below under Order XXXII Rule 15, for which the petitioner will have to file a fresh application before the court below. Needless to state that the court below shall consider the entire materials on record, in accordance with law, before passing order afresh under Order XXXII Rule 15. This Original Petition stands disposed of as above. This being a matter of the year 2015, the court below is directed to pass order afresh, as expeditiously as possible and at any rate within one month from the date of receipt/production of a copy of this judgment. 9. Pursuant to Ext P1 judgment, the first respondent examined herself and six witnesses and marked Exts A1 to A13 in evidence. The petitioner and the other defendants examined a witness on their side as DW1 and marked Exts B1 to B10 in evidence. Exts X1 to X1(c) were marked as court Exhibits. 10. The court below after conducting the voir dire test of the first respondent and after appreciating the materials on record, especially Ext A4 medical certificate issued by PW4 – the Assistant Surgeon of the Government Mental Health Centre, Thrissur – wherein it is certified that the first respondent suffers from chronic schizophrenia – arrived at the conclusion that the first respondent is incapable of protecting her interest 7 OP(C) No.1663 of 2020 without a next friend. Consequentially, the court below confirmed its earlier order and appointed a next friend for the first respondent. 11. Interpreting Order 32 Rule 15 of the Code, a Division Bench of this Court in **Mary vs. Leelamma and another** [2020 (4) KHC 176(DB)] has held as follows: 16. The term 'mental infirmity' has not been defined in the C.P.C, 1908. In the context in which the term is used in Order 32 Rule 15 C.P.C., it is capable of taking a meaning different from that of unsoundness of mind. What would that meaning be? 17. Cognitive skills are used to comprehend, process, remember, and apply incoming information to create an external reaction. The cognitive skills are the core skills a person's brain uses to think, read, learn, remember, reason, and even pay attention. The cognitive functions enable us to orient ourselves in the world, making us aware of the various dangers and rewards, assimilate the main sources of pleasure and pain, and are also the means by which we receive information from others. An infirmity in the cognitive faculty which impairs the skills of perception, discernment, comprehension and thought, will necessarily have an impact on the mind. A hearing impaired person becomes dumb on account of the impairment of his skills of perception, discernment, comprehension thought and response. Living as a deaf and dumb person, has a debilitating effect on the mental faculties of comprehension, thought, communication and even response. These faculties when affected will have an effect on the person's capacity to protect his civil rights. In the matter of communicating his views about his civil rights, a deaf and dumb person will be weak. If the impairment of hearing is to such an extent that it is almost difficult to communicate with that person, or even comprehend any reply given by him, except by understanding the signs by which one communicates with him, then there arises a weakness of the mind. This weakness, akin to an infirmity, makes it almost impossible for any person, other than those intimately acquainted with that person or a trained interpreter, either to reach his mind or to interpret it. When the infirmity of hearing is to such an extent that no one, other than those closely associated with that person or an interpreter alone 8 ## OP(C) No.1663 of 2020 is able to communicate and reach that person's mind, then, that infirmity could be regarded as a mental infirmity for the purpose of Order 32 Rule 15 of the C.P.C. Such a person though not mentally unsound, is, for the purpose of Order 32 Rule 15 of the Code of Civil Procedure, 1908, a person who is mentally infirm. 12. In view of the exposition of law by this Court in the above decision, and the conclusion arrived at by the court below in Ext P2 order, on the basis of the depositions of PWs 1 to 7 and Exts A1 to A13 and Exts X1 to X1(c), I do not find any illegality in Ext P2 order appointing a next friend for the first respondent. The court below has not overstepped its power of authority warranting interference by this Court under Article 227 of the Constitution of India. The original petition fails and is resultantly dismissed. SD/- sks/13.2.2023 **C.S.DIAS, JUDGE** 9 OP(C) No.1663 of 2020 ## **`APPENDIX OF OP(C) 1663/2020`** - `PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE JUDGMENT IN OP NO.2026/2015 DATED 15/01/2020 ON THE FILE OF THIS HONOURABLE COURT.` - `EXHIBIT P2 TRUE COPY OF THE FINDING ON ENQUIRY DATED 15/09/2020 IN OS NO.08/2015 ON THE FILE OF THE SUBORDINATE JUDGE'S COURT, CHAVAKKAD.` - `EXHIBIT P3 TRUE COPY OF EXHIBIT B1 SALE DEED DATED 20/04/1991 EXECUTED BY PLAINTIFFS IN FAVOUR OF 3RD PARTIES.` - `EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN CC NO.847/2004 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM DATED 25/01/2020.` - `EXHIBIT P5 TRUE COPY OF THE LETTER WRITTEN BY THE 1ST PLAINTIFF DILEEP KUMAR TO BALAN NAIR DATED 08/10/1993 WHICH IS MARKED AS EXHIBIT B6 IN EXHIBIT P2.` - `EXHIBIT P6 TRUE COPY OF THE AGREEMENT BETWEEN THE PLAINTIFFS AND THEIR MOTHER AS 1ST PARTY AND ONE MR. KOCHUGOPU AS 2ND PARTY DATED 05/12/1999.` - `EXHIBIT P7 TRUE COPY OF THE COMPLAINT, MP 5000/03 OF JFCM COURT, KUNNAMKULAM DATED 27/03/2003 (CC NO. 847/04).` - `EXHIBIT P8 TRUE COPY OF THE DEPOSITION OF THE 1ST PLAINTIFF DILEEPKUMAR, EXAMINED AS PW3 IN CC 847/04 OF JFCM COURT, KUNNAMKULAM.` - `EXHIBIT P9 TRUE COPY OF THE DEPOSITION OF THE 2ND DEFENDANT SANTHAKUMARI, EXAMINED AS PW4 IN CC 847/04 OF JFCM COURT, KUNNAMKULAM.` - `EXHIBIT P10 TRUE COPY OF THE DEPOSITION OF THE NEXT FRIEND WHO IS EXAMINED AS PW2 DATED 05/03/2020 IN OS 8/2020.` - `EXHIBIT P11 TRUE COPY OF THE DEPOSITION OF THE 2ND PLAINTIFF EXAMINED AS PW1 IN OS 8/2008.`