IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 21ST NOVEMBER 2008 / 30TH KARTHIKA 1930 WP(C).No. 34182 of 2008(T) -------------------------------------------- IA 3038/2007 IN OS.183/2002 of MUNSIFF COURT, KOTTARAKKARA .................... PETITIONER: ABDUL SALAM, S/O. SUBAIR ROWTHAR, AGED 40 YEARSW, SABAANA MANZIL, KOLLAYIL.P.O. CHIRAVOOR MURI, CHITHARA VILLAGE. BY ADV. SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH RESPONDENTS: 1. YUSUFF RAWTHAR, S/O. ABDUL MAJEED ROWTHAR, MELATHIL PUTHAN VEEDU, KOLLAYIL.P.O, CHIRAVOOR MURI, CHITHARA VILLAGE. 2. NUSAIFA BEEVI, MELATHIL PUTHEN VEEDU, KOLLAYIL.P.O, CHIRAVOOR MURI, CHITHARA VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.34182 of 2008 T -------------------------- JUDGMENT Heard counsel for the petitioner/defendant. As per Exhibit P1 order in C.R.P.No.1037/03, this Court found that the wife of the first respondent/ plaintiff, who is the second respondent herein, is not competent to be appointed as guardian, as she opposed the application of the plaintiff as matters then stood. This Court further observed that the trial court may appoint some other person as the next friend of the plaintiff. 2. According to the learned counsel for the petitioner, in the meanwhile, it so happened that after passing of Exhibit P1 order, the suit was dismissed without any action from the part of the court below to appoint a court guardian or to appoint some one else as guardian. Thereafter, the second respondent filed Exhibit P2 application for restoration of the suit and thereupon, vide Exhibit P3 order, the court below restored the suit. WPC 34182/08 2 3. It is vehemently contended before me by the learned counsel for the petitioner that on Exhibit P2 application filed by the second respondent, who is the wife of the first respondent, the suit should not have been restored, as pursuant to Exhibit P1 order, she was incompetent to act on behalf of the first respondent/ plaintiff. The submission, no doubt, is true. But, all the same, the fact remains that without complying with the direction of this Court in Exhibit P1 order, it so happened that the trial court dismissed the suit for default. The procedure, no doubt, is irregular and improper. But the court below should have, on Exhibit P1 being brought to its notice, suo motu restored the suit and acted according to the directions contained in Exhibit P1 order. The restoration of the suit viewed in that angle deserves to be upheld. It is the further contention of the petitioner that Exhibit P4 order was passed consequent on Exhibit P3, whereby, the trial court held that the first respondent/plaintiff is physically and mentally fit to conduct the case and there is no necessity to appoint a next friend. WPC 34182/08 3 4. The question as to whether the plaintiff requires a next friend to be appointed as guardian to prosecute the suit is a matter on which the trial court is competent to conduct an enquiry. It is seen that the court below has passed Exhibit P4 consequent on his entering a finding that the plaintiff is physically and mentally fit to conduct the case after recording his sworn statement. The question of appointment of a next friend as guardian as directed by this Court arises only in the event of necessity of appointing a guardian existing even at the time of passing of Exhibit P4 in November 2008. Exhibit P1 order was passed on 8.4.2005 when this Court had occasion to observe that despite the contention of the present petitioner, who is the defendant in the suit, that the first respondent is not of unsound mind, in the circumstances available in the case and the evidence adduced in the case, it is not clear whether the plaintiff will be able to take decision of his own on merits and that it can be found only after evidence is taken in the suit. The evidence that is made mention of in Exhibit P1 order is certainly not regarding the evidence on merits of the WPC 34182/08 4 claim in the case, but, evidence regarding the competency of the plaintiff to protect his own interest. Exhibit P4 order shows that the court below recorded the sworn statement of the first respondent/ plaintiff and got convinced that the first respondent is physically and mentally fit to conduct the case and that there is no necessity to appoint a next friend. 5. The prayer in this writ petition is only to quash Exhibit P3, which I have already found is not liable to be quashed as even otherwise the suit deserved to be restored suo motu. Exhibit P4 is a consequential order and the petitioner having produced that also before this Court, to avoid further controversy, this Court is confirming the said order as well. This writ petition is disposed of as above. 21st November, 2008 (K.P.Balachandran, Judge) tkv