R.P. No.596 of 2023

1 R.P No.596 of 2023 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 11[TH] DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945 ``` ``` RP NO. 596 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT OP(C) 1663/2020 OF HIGH COURT OF KERALA ``` ## **`PETITIONER/S:`** ``` RAJASREE,AGED 51 YEARS,KANDAMKORATH HOUSE, NJAMANENGAD.P.O, KUNNAMKULAM (VIA), THRISSUR DISTRICT, PIN - 679563 ``` ``` BY ADV V.C.MADHAVANKUTTY ``` ## **`RESPONDENT/S:`** |`1`|`SANTHAKUMARI(MENTALLY RETARDED PERSON) AGED 47 YEARS,VAILATHOORAMSOM`| |---|---| ||`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, PIN - 500055`| |`2`|`SARASWATHY AMMA,AGED 62 YEARS,D/O. PANTHAMPULAKKAL DEVAKI AMMA,`| ||`ORUMANAYOORAMSOMDESOM, CHAVAKKAD TALUK, NOW RESIDING AT SARASWATHI`| ||`AMMA, KANDAMKORATH HOUSE, NJAMANENGAD.P.O, KUNNAMKULAM (VIA),`| ||`THRISSUR DT, PIN - 679563`| |`3`|`JAYARAJAN,AGED 40 YEARS,S/O. SARASWATHY AMMA, 1ST RESPONDENT, -DO-,`| ||`NOW AT JAYARAJAN, KANDAMKORATH HOUSE, NJAMANENGAD.P.O, KUNNAMKULAM`| ||`(VIA), THRISSUR DT, PIN - 679563`| |`4`|`JAYASREE,AGED 38 YEARS,D/O. SARASWATHY AMMA, 1ST RESPONDENT, -DO-,`| ||`NOW AT JAYARAJAN, KANDAMKORATH HOUSE, NJAMANENGAD.P.O, KUNNAMKULAM`| ||`(VIA), THRISSUR DT, PIN - 679563`| |`5`|`KOCHUGOPU,AGED 36 YEARS,S/O. SARASWATHY AMMA, 1ST RESPONDENT, -DO-,`| ||`NOW AT JAYARAJAN, KANDAMKORATH HOUSE, NJAMANENGAD.P.O, KUNNAMKULAM`| ||`(VIA), THRISSUR DT., PIN - 679563`| |`6`|`SURESH,AGED 25 YEARS,S/O LATE PANTHAMPULAKKAL MALATHY AMMA,`| ||`ORUMANAYOORAMSOM AND DESOM, CHAVAKKAD TALUK, NOW AT`| ||`SURESH,KANDAMKORATH HOUSE, NJAMANENGAD.P.O, KUNNAMKULAM (VIA),`| ||`THRISSUR DT, PIN - 679563`| |`7`|`JACOB,AGED 46 YEARS,S/O. THALAKKOTTOOROUSEPPUNNI,`| ||`VAILATHOORAMSOMDESOM, CHAVAKKAD TALUK, PIN - 679563`| ||`BY ADV P.RAMACHANDRAN -R1`| ``` THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11.09.2023, THE COURT ``` ``` ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 R.P No.596 of 2023 ## **C.S DIAS,J.** **--------------------------R.P No.596 of 2023** **----------------------------Dated this the 11[th] day of September, 2023[ .]** ## **ORDER** The review petition is filed assailing the judgment rendered by this Court in OP(C) No.1663/2020. The review petitioner was the petitioner and the respondents were the respondents in the above original petition. 2. The review petitioner’s case in the review petition, in a nutshell, is that this Court has passed the impugned judgment without considering the actual facts of the case. This Court has erroneously observed in the judgment that OS No.8/2015 was directly filed by the first respondent and her late brother Dileep Kumar against the respondents 2 to 7 before the court below 3 R.P No.596 of 2023 and it was only in 2015 that the application to appoint a next friend was filed. In fact, the application to appoint the next friend was filed along with POP No.15/2004 before the court below, which was converted to the suit. The decision relied on by this Court in **Mary vs. Leelamma and another** [2020 (4) KHC 176 (DB)] has no connection with the facts of the case on hand. Even after the suit was filed, the plaintiffs were examined as witnesses in CC No.847/2004 before the Judicial First Class Magistrate Court, Kunnamkulam, which substantiate that they have no mental illness. But this Court has failed to take note of the said depositions. Furthermore, in **Premakumari C.V vs. C.V Pavithran** [2018 (5) KHC 943], this Court has held that it was always open to the defendants to 4 R.P No.596 of 2023 challenge the plaint allegation that the plaintiff is a person of unsound mind. Similarly, in **Balakrishnan vs Kalliyani** [ 1957 KHC 48] and **Roy Thomas vs Lekha Roy** [ 2019 (2) KHC 130], this Court has held that a proper enquiry has to be conducted before appointing a guardian under Order 32 Rule 15 of the Code. The major questions involved in the original petition were not considered by this Court in the impugned judgment, which is an error apparent on the face of the judgment. Hence, the review petition. 3. Heard; Sri.V.C Madhavankutty, the learned counsel appearing for the review petitioner and Sri.Ramachandran.P, the learned counsel appearing for the first respondent on admission. 5 R.P No.596 of 2023 4. The suit was originally filed as an indigent original petition in the year 2004 as POP No.15/2004. Indisputably, the original petition was converted to the suit only in the year 2015. It was then, on 8.4.2015, the court below found that there was no illegality in a next friend representing the plaintiffs – the first respondent and her brother. The said order was challenged before this Court in OP(C) No.2026/2015. This Court allowed ## the original petition by holding thus: “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 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. 6 R.P No.596 of 2023 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. 5. Consequent to the judgment, PWs 1 to 7 and DW1 were examined and Exts A1 to A13, B1 to B10 and X1 to X1(c) were proved through them. The court below after analysing the materials on record and conducting the voir dire test of the first respondent as contemplated under Order 32 Rule 15 of the Code, and particularly considering Ext A4 medical certificate issued by PW4, who testified that the first respondent is suffering from chronic schizophrenia, arrived at the conclusion that the first respondent is incapable of protecting her interest. It is not disputed that the first respondent’s brother died during the period. 7 R.P No.596 of 2023 6. It is this order that is assailed in the original petition filed under Article 227 of the Constitution of India. 7. There is profusion of precedential authority that a proceeding to appoint a next friend is summary in nature. 8. Notwithstanding the above declaration of law, the court below has elaborately considered the question as to whether the first respondent is capable of conducting the proceeding by herself and concluded in the negative that the first respondent requires a next friend. 8 R.P No.596 of 2023 9. In **Mary vs Leelamma and another** (supra), a Division Bench of this Court has succinctly laid down the law that even a deaf and dumb person can be termed as a person falling within the term ‘mentally infirm’, and the said term has to be given a very expansive interpretation. 10. It is based on the pleadings, the materials on record and the law laid down in **Mary vs Leelamma and another** that this Court has passed the impugned judgment. The decision in **Roy Thomas** (supra) has no application to the facts of the instant case because that was a case relating to appointment of a guardian and not a next friend, wherein this Court held that a stricter approach is to be adopted. 9 R.P No.596 of 2023 11. Moreover, the power of superintendence of this Court under Article 227 of the Constitution of India is to be sparingly exercised and in cases of exceptional rarity, that too, to keep the Courts of the District Judicature within their bounds of authority. In the above conspectus, I do not find any error apparent on the face of record warranting interference with the impugned judgment by exercising the review jurisdiction. The review petition is meritless and is hence, consequentially dismissed. sd/- Sks/11.9.2023 **C.S.DIAS, JUDGE** 10 R.P No.596 of 2023 ## **`APPENDIX OF RP 596/2023`** ``` RESPONDENT EXHIBITS Exhibit-R1(a)True copy of the screen shot showing the recent proceedings date in respect of O.S.8/2015 on the file of Sub Court, Chavakkad obtained from the ECourts services ```