IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 WP(C).No. 28066 of 2008(N) -------------------------- OS.42/2008 of MUNSIFF COURT, PERUMBAVOOR .................... PETITIONER(S): -------------------------- GIRIJA, AGED 49, D/O.LEELAVATHY KUNJAMMA, KUMMANODU MADOM, KUMMANODU KARA, PATTIMATTOM VILLAGE, REPRESENTED BY BALACHANDRA PANICKER, AGED 59 YEARS, S/O.SANKARANKUNJI, PATTIMATTOM VILLAGE. BY MR.K.RAMAKUMAR, SENIOR ADVOCATE, MR.T.RAMPRASAD UNNI, MR.J.R.PREM NAVAZ RESPONDENT(S): ---------------------------- KAVUKUTTY KUNJAMMA, AGED 62 YEARS, D/O.PAPPIKUNJAMMA KUMMANODU MADOM, KUMMANODU KARA, PATTIMATTOM VILLAGE. BY ADV. SMT.K.GIRIJA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.28066/2008 N APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PETITION DTD. 26/07/2008 SUBMITTED BY THE PETITIONER BEFORE THE MUNSIFF COURT, PERUMBAVOOR. P2: COPY OF THE ORDER DTD. 5/09/2008 IN I.A.NO.2035 OF 2008 IN O.S.NO.42 OF 2008 ON THE FILE OF THE MUNSIFF COURT, PERUMBAVOOR. P3: COPY OF THE PETITION DTD. 19/08/2008 SUBMITTED BY THE PETITIONER BEFORE THE MUNSIFF COURT, PERUMBAVOOR. P4: COPY OF THE ORDER DTD. 5/09/2008 IN I.A.NO.2277 OF 2008 IN O.S.NO.42 OF 2008 ON THE FILE OF THE MUNSIFF COURT, PERUMBAVOOR. RESPONDENT'S EXHIBITS: R1: COPY OF THE JUDGMENT DTD. 22/01/1977 IN O.S.275/76 ON THE FILES OF MUNSIFF COURT, PERUMBAVOOR. R2: COPY OF THE PLAINT IN O.S.42/2008 ON THE FILES OF MUNSIFF COURT, PERUMBAVOOR. R3: COPY OF THE ORDER DTD. 19/09/2007 IN RP NO.896/2006 IN W.P.C.NO.25191/2006. /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.28066 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 25th May, 2009 JUDGMENT The Writ Petition is filed under Article 227 of the Constitution of India seeking the following reliefs: 1. To call for the records leading upto Ext.P2 and quash the same by the issuance of a writ of certiorari or any other appropriate writ, order or direction. 2. To issue a writ of mandamus commanding the learned Munsiff, Perumbavoor to permit the petitioner to withdraw the amount deposited in court as cost of the sale of the trees permitted to be cut and removed with a liability to account to that court and spend money for the purpose of the health care of the plaintiff. 3. To issue such other writs, orders or directions as this Hon'ble Court may deem fit and proper in the circumstances of the case. Petitioner as the next friend of a mentally ill person filed a suit for injunction, O.S.No.42/08 before the Munsiff Court, Perumbavoor against the respondent for a decree of perpetual prohibitory injunction to restrain the defendant from causing any obstruction to the plaintiff in slaughter tapping of the rubber trees in the plaint schedule property belonging to the above said mentally ill person and W.P.C.No.28066/08 - 2 - also in replanting the rubber saplings after such slaughter tapping. In the suit the petitioner also moved an application for slaughter tapping of the trees by way of public auction over which some formal objections were raised by the respondent. The learned Munsiff, after appreciating the facts and the circumstances involved, passed an order permitting slaughter tapping of the trees by way of public auction directing deposit of the amount collected in court. Accordingly, slaughter tapping was done, and a sum of Rs.99,000/- received as premium was deposited. The plaintiff, thereupon, moved an application for withdrawal of the sum deposited, which was vehemently objected to by the respondent. The learned Munsiff, after hearing the counsel on both sides, passed Ext.P2 order dismissing the application for withdrawal of the sum, directing the sum be deposited in a nationalised bank or treasury in the name of the plaintiff- mentally ill person. The propriety, legality and correctness of the order passed by the learned Munsiff is assailed by the petitioner in this Writ Petition invoking the extraordinary supervisory jurisdiction of this court under Article 227 of the Constitution. 2. I heard the learned counsel on both sides. Inviting my attention to the statements in the plaint that the plaintiff is a mentally W.P.C.No.28066/08 - 3 - retarded person and not a mentally ill person and in respect of the properties belonging to such a person, the provisions of the National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999 are applicable and the civil court has no jurisdiction to pass any orders interfering with the management over the property of the mentally retarded person learned counsel for the respondent contended that no interference with the order passed by the learned Munsiff emerge for consideration in the facts of the case. On the other hand, learned counsel for the plaintiff contended that there was an agreement between the maternal grand mother and also the petitioner in which the father of the mentally ill person was also a party enabling the petitioner to be in management of the property belonging to the mentally ill person and as such as the slaughter tapping of the trees are over, for a proper management and in order to collect income and to preserve the utility of the land, he must be permitted to commence replanting of the rubber saplings meeting such expenditure from the amount lying now in deposit before the court. I have given anxious consideration of the submissions made by the counsel on both sides taking note that the property covered by the W.P.C.No.28066/08 - 4 - suit belongs to a mentally incapacitated person. There is serious dispute whether she is a mentally ill person governed by the Mental Health Act and Guardians and Wards Act or as a mentally retarded person coming within the purview of National Trust for Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act, 1999. To resolve the question cropping up for consideration in the present Writ Petition, I find this court need not express any opinion in the above matter. I find, the suit has been filed for a relief of injunction against the defendant who is also stated to be a close relative of the plaintiff to restrain her from causing any objection to slaughter tapping of the rubber trees and then, replanting of rubber saplings afresh. Part of the relief claimed in the suit, it is seen, has already been granted by the orders passed by the court. The next question is whether the amount which has been collected by slaughter tapping of the trees can be allowed to be withdrawn by the next friend of the plaintiff. Learned counsel for the petitioner inviting my attention to Order 32 Rule 6 contended that she is entitled to get withdrawal of the amount for the benefit of the mentally incapacitated plaintiff. for the benefit of the minor. I do not find anything in Order 32 Rule 6 in favour of the petitioner, which is W.P.C.No.28066/08 - 5 - negatively couched interdicting even a next friend or guardian appointed in a suit from receiving any money or other articles on behalf of the minor either by way of compromise before decree or order, or under a decree or order in favour of the minor without leave of the court. Even when a decree is passed, the next friend appointed of a minor without the leave of the court shall not receive any money or movable property on behalf of the minor is the mandate of Order 32 Rule 6, which in no way empowers the petitioner to seek withdrawal of the amount lying under deposit before the court which absolutely belongs to the plaintiff. I do not see any impropriety in the order passed by the learned Munsiff in dismissing the application for withdrawal. But, I make it clear that the dismissal of the application moved for withdrawal of the sum will not prevent either of the parties in getting an order of payment to that party after getting an order of appointment in his favour as the guardian of the plaintiff, who is stated to be either a mentally ill person or mentally retarded person. Subject to the above observations, the Writ Petition is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE W.P.C.No.28066/08 - 6 -