IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 CRP.No. 955 of 2005 AGAINST THE ORDER DATED 5.8.2005 IN I.A.NO.336/2005 IN O.S.NO.27/2005 ON THE FILE OF THE SUB COURT, PALA. REVN. PETITIONER: RESPONDENT: ------------------ JOSEKUTTY, S/O.THOMAS, MUTTATHU HOUSE, CHENAPPADY MURI, ERUMELY SOUTH VILLAGE, PATHANAMTHITTA DISTRICT. BY ADV. SRI.M.NARENDRA KUMAR RESPONDENTS: PETITIONERS: ------------- 1. ANNAMMA, W/O.THOMAS, MUTTATHUTHURUTHY, PADINJATTAYIL HOUSE, CHENAPPADI MURI, ERUMELY SOUTH VILLAGE. 2. KOCHU THRESSIAMMA THOMAS, MUTTATHU HOUSE, CHENAPPADY MURI. BY ADV. SRI.JOY GEORGE THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/04/2008,ALONG WITH C.R.P.NO.958 OF 2005, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A.NO.2727/2005 IN C.R.P.NO.955/2005 DISMISSED 11/4/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- C.R.P. NOS.955 & 958 OF 2005 -------------------------------------------- Dated this the 11th April, 2008 O R D E R These Revisions are filed by Josekutty, the second plaintiff in O.S.No.27 of 2005 and O.S.No.131 of 2004, Sub Court, Pala, challenging the orders in I.A.Nos.336 of 2005 and 1482 of 2004 in the respective suits. By the orders impugned, the court below allowed the applications filed by the respondents in the Revisions under Order XXXII Rule 15 of the Code of Civil Procedure and held that Annamma was capable of protecting her interest and, therefore, the petitioner Josekutty should not be allowed to represent her as her next friend in the suits. 2. O.S.No.27 of 2005 was originally filed as O.S.No.144 of 2004, Munsiff's Court, Kanjirappally. The suit was transferred to the Sub Court, Pala and it was renumbered as O.S.No.27 of 2005. The suit was filed by Annamma and Josekutty. Annamma was shown to be represented by her next friend Josekutty. 3. O.S.No.131 of 2004 was filed by Annamma and Josekutty. In that suit also Josekutty sought to represent Annamma as her next friend. Defendants 1 and 2 in O.S.No.131 of 2004 are Tom Sojan, son of Annamma, and Molly, wife of Tom Sojan. It is stated that there is one C.R.P. NOS.955 & 958 OF 2005 :: 2 :: more defendant in O.S.No.131 of 2004. Contending that Annamma is a person who is capable of looking after her affairs and of protecting her interests, and that Josekutty should not be permitted to file the suit representing as the next friend of Annamma, defendants 1 and 2 in O.S.No.131 of 2004 filed I.A.No.1482 of 2004 under Order XXXII Rule 15 of the Code of Civil Procedure. Similarly, in O.S.No.27 of 2005, Annamma and Kochu Thressiamma Thomas, who was not a party to the suit, filed I.A.No.336 of 2005 for similar relief under Order XXXII Rule 15 of the Code of Civil Procedure. 4. The applications were contested by Josekutty. According to the petitioners in the applications, though Annamma was aged 93, she was having the required mental and physical capacity to look after her affairs and, therefore, Josekutty should not be permitted to act as her next friend to file the suit. According to Josekutty, Annamma was not having the disposing state of mind and she was suffering from loss of memory and other ailments. 5. Before the court below, Annamma was examined as a court witness. The court below held in paragraph 15 of the order thus: “15. According to the evidence of the CW1 Annamma, she has answered all the questions put on her by this court correctly and properly though she is a woman of age in between 93 and 95. She has deposed before the court exact standard up to which she was studied and she C.R.P. NOS.955 & 958 OF 2005 :: 3 :: also deposed that at the 16th year of her age, she got married. Her marriage was solemnised at particular church and she deposing everything regarding all her children both sons and daughters and also deposed that two daughters were joint on spiritual perpetuity (nun). So on going through the evidence tendered by CW1 the said Annamma, which is very clear and prima facie proved that she has capacity to understand everything and also she has memory power etc. etc. As quite naturally she had some extent of absent minded. This is quite natural to all human being. It is pertinent note that this witness put her signature in all the pages in the depositions recorded by this court in this proceedings correctly and without any difficulty also. On evaluation of the evidence tendered by the CW1 Annamma and also answers given by her through out this proceedings, one can clearly arrive at a conclusion that she is at present also has the mental capacity and memory power etc. etc. On the other hand the plaintiff/ respondent has not proved that the Annamma has lost her memory power, capacity to understand etc. etc. and she has lost all powers for maintaining herself etc. etc. So this court is opinion that the filing of both suits by the second plaintiff as next friend for the first plaintiff for and behalf of the first plaintiff Annamma is not proper and not genuine. So as claimed by petitioners as in I.A.No.1482/04 in O.S.131/04 and IA.136/2005 in OS.27/2005 (IA.1286/2004 in O.S.No.144/2004) are found genuine and reasonable one. Therefore this point No.1 and 2 are found accordingly.” 6. Learned counsel for the petitioner submitted that the procedure adopted by the court below was not proper and instead of putting questions to Annamma, she should have been subjected to a medical examination. Learned counsel for the contesting respondent, on the other hand, contended that a similar contention was raised by the revision petitioner earlier. He had filed an application before the court below to subject Annamma to medical examination by a Medical Board. That application was dismissed. W.P.(C) No.11543 of 2005 was filed by C.R.P. NOS.955 & 958 OF 2005 :: 4 :: Josekutty, the revision petitioner, challenging that order. It was held that the court below was justified in rejecting the prayer to subject Annamma to medical examination at that stage. 7. Annamma died on 15.8.2006, after the Revision Petitions were filed. In C.R.P.No.955 of 2005, Annamma is the first respondent. Nobody is impleaded as her legal representative. 8. Since Annamma passed away, there is no question of Josekutty representing Annamma as her next friend. Learned counsel for the petitioner submitted that had the order passed by the court below been the other way about, he could have continued the suit in his capacity as the legal representative of Annamma as well. He also submitted that if Josekutty files a suit to set aside the documents, probably the same would be barred by limitation. 9. After hearing the counsel for the parties and after going through the detailed order passed by the court below, I am of the view that the court below has not committed any error in allowing the applications. The examination of Annamma cannot be said to be illegal. Before allowing a person to represent another person as her next friend, the court must be satisfied that the person who is being represented is a person incapable of filing a suit or looking after her affairs or protecting her interests. On C.R.P. NOS.955 & 958 OF 2005 :: 5 :: examination of Annamma as a court witness, it was revealed that Annamma could file a suit or continue the suit on her own. Therefore, decision of the court below under Order XXXII Rule 15 of the Code of Civil Procedure was quite proper. 10. At the same time, the interests of the revision petitioner are to be protected to the extent possible. The fact that Annamma died during the pendency of the Revision should not result to the disadvantage of Josekutty. The question whether suits can be continued by Josekutty is a matter to be decided by the lower court. The findings in paragraph 15 of the order impugned were made only for the purpose of deciding the question under Order XXXII Rule 15 of the Code of Civil Procedure. It is made clear that the finding arrived at by the court below in paragraph 15 of the order impugned shall be confined to such proceedings and not for finally deciding the dispute between the parties. With these observations, both the Civil Revision Petitions are disposed of. The court below shall make earnest endeavour to dispose of the suits expeditiously. (K.T.SANKARAN) Judge ahz/