IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 WP(C).No. 4627 of 2008(A) -------------------------------------- (I.A.NO.4761/2007 IN O.S.295/2007 OF ADDL.SUB COURT, KOZHIKODE) PETITIONER: --------------------- THEKKE KOODANCHALIL JANAKI, W/O.RAMOTTY, INSANE, REPRESENTED BY GUARDIAN AND NEXT FRIEND THEKKE KOODANCHALLIL KANDAKUTTY, PENSIONER, S/O. UNNAMAN, PADINHATTUMURI AMSOM DESOM, P.O.KAKKODI. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS: ------------------------- 1. T.K.VISWAN, S/O. RAMOTTY, L.I.C.AGENT, RESIDING AT THEKKE KOODANCHALIL, PADINHATTUMURI AMSOM DESOM, P.O.KIZHAKKUMURI. * 2. T.K.MOHANAN, S/O. RAMOTTY, RESIDING AT THEKKE KOODANCHALIL, PADINHATTUMURI AMSOM DESOM, P.O.KIZHAKKUMURI. (D E L E T E D) 3. T.K.SHOBHANA, D/O. RAMOTTY, RESIDING AT NELLIPPOYILIL, P.O.KONOTTU, VIA KUNNAMANGALAM, KURUVATTUR AMSOM, KONOTTU DESOM. 4. T.K.SHYLAJA, D/O. RAMOTY, RESIDING AT POYILIL, "SREESAILAM", ERANHIKKAL, ELATHUR AMSOM DESOM, KORANNUR. 5. THE FEDERAL BANK LTD., KOZHIKODE BRANCH, CHEROOTTY ROAD, KOZHIKODE-673 032, NAGARAM AMSOM DESOM, KOZHIKODE TALUK. 6. M.BIJU, S/O. KUNHIKRISHNAN NAIR, RESIDING AT KALLAMKIRALIL VEEDU, PADINATTUMURI AMSOM DESOM, P.O.KAKKODI, KOZHIKODE-673 611. *R3 IS DELETED FROM PARTY ARRAY AT THE RISK OF THE PETITIONER AS PER ORDER IN I.A.9953/08 DTD. 6/08/08. ADV. SMT.R.BINDU SASTHAMANGALAM - R1 SRI.MOHAN JACOB GEORGE FOR R.5 SRI.GIGIMON ISSAC FOR R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC.NO.4627/2008 A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE PLAINT IN O.S.295/2007 ON THE FILE OF THE ADDITIONAL SUB COURT, KOZHIKODE. EXT.P2: COPY OF THE PETITION FILED BY THE PETITIONER. EXT.P3: COPY OF THE ORDER IN I.A.4761/2007 IN O.S.295/2007 DTD. 5/01/2008. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ W.P.(C) NO. 4627 OF 2008 ------------------------------------------ Dated this the 27th day of August, 2008 JUDGMENT This petition is filed under Article 227 of Constitution of India challenging Ext.P3 order passed by Sub Court, Kozhikode in I.A.4761 of 2007, an application filed under Rule 15 of Order XXXII of Code of Civil Procedure for conducting an inquisition to enable the plaintiff to be represented through the next friend. Under Ext.P3 order, learned Munsiff dismissed the application with costs of respondents 5 and 6. 2. Learned counsel appearing for petitioner and respondents No.5 and 6 were heard. 3. Learned counsel appearing for petitioner argued that when the suit is instituted by the plaintiff claiming that she is not mentally sound and that to decide that fact Court is bound to conduct an inquiry as provided under Rule 15 of Order XXXII of Code of Civil Procedure and as the inquiry was not conducted, Ext.P3 order is to be quashed. 4. Learned counsel appearing for respondents argued WP(C)4627/08 2 that I.A.4761 of 2007 was filed only as an attempt to protract the order of injunction obtained exparte against the respondents and even if an order under Rule 15 of Order XXXII of the Code is passed, the order is not binding on the defendants and defendants are entitled to contend that plaintiff is not of unsound mind and cannot be represented through the next friend and if such a contention is raised, Court is bound to frame an issue and thereafter permit the parties to adduce evidence and decide that issue and in such circumstances there is no necessity to conduct an inquiry as sought for in I.A.4761 of 2007. Learned counsel appearing for sixth respondent submitted that even if Ext.P3 order is to be interfered, trial Court may be directed to dispose the suit expeditiously. 5. When a plaint is presented by a person claiming to be the next friend of the plaintiff, on the allegation that either plaintiff is of unsound mind or is not capable by reason of mental infirmity to protect her interest, Court is bound to conduct an inquiry. Rule 15 of Order 32 provides that the Rules 1 to 14, which relate to minor, would apply to a person of unsound mind and also to persons who are by reason of mental infirmity is unable to protect their interest. It is not disputed that the WP(C)4627/08 3 learned Sub Judge did not conduct an inquiry while the suit was instituted so as to decide whether plaintiff could be permitted to be represented through the next friend. As no inquiry was conducted, learned Sub Judge is directed to consider I.A.4761 of 2007 and decide the question whether the plaintiff is entitled to be represented through a next friend as provided under Rule 15 of Order XXXII of Code of Civil Procedure. If the Court finds that plaintiff cannot be represented through next friend, then the suit as such may not lie and the learned Sub Judge is to pass appropriate order. If it is to be found that plaintiff is to be permitted to be represented through next friend, in the light of the written statement filed, learned Sub Judge necessarily has to frame necessary issues and proceed with the trial. Writ petition is disposed of as above. M. SASIDHARAN NAMBIAR, JUDGE Okb/-