IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 26TH NOVEMBER 2008 / 5TH AGRAHAYANA 1930 RSA.No. 1131 of 2008() ---------------------- AS.75/2006 of PRL.S.C.,THALASSERY OS.99/2006 of MUNSIF COURT, KUTHUPARAMBA .................... APPELLANTS/PLAINTIFFS ----------------------------------------- 1. T.P.MANOHARAN, KAIDERI PUTHIYADATH, PATHIRAYAD.P.O, THALASSERY TALUK,KANNUR DISTRICT. 2. SUDHEELA.T, -DO- -DO- . BY ADV. SRI.V.PREMCHAND RESPONDENT(S): RESPONDENTS/DEFENDANTS ------------------------------------- 1. T.P.BHASKARAN, KAIDERI PUTHIYADATH, PATHIRAYAD.P.O, THALASSERY TALUK, KANNUR DISTRICT. 2. T.P.SADANANDAN, DO. DO. 3. T.P.VINODAN, DO. DO. 4. T.P.SANILA, DO. DO. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 26/11/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “CR” V. RAMKUMAR, J. = = = = = = = = = = = = = R.S.A.No.1131 of 2008 = = = = = = = = = = = = = = Dated this the 26 th day of November, 2008 JUDGMENT The plaintiffs in O.S.No.99 of 2006 on the file of the Munsiff's Court, Kuthuparamba are the appellants in this second appeal . The said suit was one for appointing the 1st plaintiff as the guardian of the person and property of his sister the 2nd plaintiff who is said to be suffering from 60% deafness. No other prayer was made in the plaint. The person arrayed as the defendants in the suit were the 3 brothers and a sister of the plaintiffs. 2. According to the plaintiffs, their father T.P.Kunhappa was a retired Lans Nayak in the Indian Army. After the death of their father their mother Sarada was receiving family pension to the tune of Rs.2,300/- per month. While so, Sarada died on 17.10.2004. The 2nd plaintiff is an unmarried, unemployed lady who has no source of income and is suffering from the aforementioned disability. She is staying along with the 1st plaintiff. Defendants 1,2 and 3 are the brothers and the 4th R.S.A.No.1131 of 2008 2 defendant is the other sister of the plaintiffs. After the death of their mother Sarada, the Record Officer of the EME asked the 2nd plaintiff to submit a guardianship certificate obtained from a competent court for disbursal of the family pension. That has necessitated the suit. 3. Both the courts below held that the suit of the above nature was not maintainable . Hence this second appeal. 4. The learned counsel for the appellants/plaintiffs placed heavy reliance upon Rule 1(2)(c) Order XXXII-A C.P.C to contend for the position that a suit of the present nature for the appointment of a guardian for a member of the family under a disability is maintainable. Order XXXII-A sub-rules (1) to (3) of Rule 1 reads as follows:- “1. Application of the Order:- (1) The provisions of this Order shall apply to suits or proceedings relating to matters concerning the family. (2) In particular and without prejudice to the generality of the provisions of sub-rule(1), the provisions of this Order shall apply to the following suits or proceedings concerning the family, namely:- (a) a suit or proceeding for matrimonial relief, R.S.A.No.1131 of 2008 3 including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person; (b) a suit or proceeding for a declaration as to the legitimacy of any person; (c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability; (d) a suit or proceeding for maintenance; (e) a suit or proceeding as to the validity or effect of an adoption; (f) a suit or proceeding, instituted by a member of the family relating to wills, intestacy and succession; (g) a suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law; (3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or proceeding.” 5. I am afraid that I cannot agree with the above submissions made on behalf of the appellants. Order XXXII-A C.P.C is not in the realm of substantive law conferring any R.S.A.No.1131 of 2008 4 substantive right on litigants as is the case with any other Order in the First Schedule to the C.P.C. Order XXXII-A only regulates the procedure in relation to any suit or other proceedings relating to matters concerning the “family” as defined under Rule 6 of the said Order. 6. The learned counsel for the appellant also was unable to enlighten this Court with the aid of authorities to substantiate his argument that a suit of the present nature merely for the appointment of a guardian is maintainable under Order XXXII-A Rule 1(2)(c) C.P.C. I, therefore, do not find any good ground to interfere with the findings recorded by the courts below to the effect that the suit is not maintainable. Nothing prevented the plaintiffs from instituting a suit against the Record Officer, EME and seeking a mandatory injunction directing him to pay the family pension, if any, due to the 2nd plaintiff as an heir of T.D.Kunhappa and his wife Sarada. Rule 15 of Order 32 CPC has been interpreted to cover even cases of extreme bodily infirmity within its fold. (Vide Raveendran v.Sobhana (2008 (1) KLT 488). The 2nd plaintiff could have instituted a proper suit through a next friend for realisation of the family pension, if any. R.S.A.No.1131 of 2008 5 7. Moreover, the question of appointing the 1st plaintiff as a guardian of the 2nd plaintiff is unknown to law. If the person suffering from the alleged disability is a plaintiff, the law allows a next friend to conduct his or her case. It is only if such person figures as a defendant in a suit can the question of appointing a guardian for such person, arises. For that reason also, the suit was a misconceived one. This second appeal is accordingly dismissed since this appeal does not raise any substantial question of law within the meaning of Section 100 C.P.C. This order, however, will not preclude the 2nd plaintiff from attempting to recover the amounts, if any, due to her by way of family pension through a properly instituted suit. Dated this the 26 th day of November, 2008. V. RAMKUMAR, JUDGE sj