IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 WP(C).No. 37940 of 2008(N) -------------------------------------- OS.88/2003 of MUNSIFF -MAGISTRATE COURT, ERATTUPETTA .................... PETITIONER(S): ---------------------- ROSAMMA GEORGE, W/O.GEORGE, AGED 50, MUTHUPUNNACKAL HOUSE, PLANASSAL P.O. KOTTAYAM. BY ADV. MR.VIVEK VARGHESE P.J. MR.VARUGHESE M EASO MR.P.J.VINOD JOSEPH SMT.REEJA RANI MR.PETER K.ALIAS RESPONDENT(S): ------------------------ 1. M.K. THOMASKUTTY, AGED 47 MUTHUPUNNACKAL HOUSE, THALAPULAM KARA, ERATTUPETTA VILLAGE, KOTTAYAM DISTRICT. 2. ELASAMMA THOMAS, W/O.M.K.THOMAS, AGED 45, MUTHUPUNNACKAL HOUSE, THALAPULAM KARA, ERATTUPETTA VILLAGE. KOTTAYAM DISTRICT. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 37940/2008-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT OF O.S.617/99 DATED 21/12/2006 OF MUNSIFF COURT, ERATTUPETTA. EXT.P2: COPY OF THE ORDER IN I.A.1084/04 OF MUNSIFF COURT ERATTUPETTA DATED 24/01/2004. EXT.P3: COPY OF THE ORDER IN I.A.161/08 OF MUNSIFF COURT ERATTUPETTA DATED 28/02/2008. EXT.P4: COPY OF THE ORDER IN CMA.17 OF 2008 OF SUB COURT PALA DATED 24/10/2008. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.37940 of 2008 - N --------------------------------- Dated this the 9th day of June, 2009 J U D G M E N T This writ petition is filed under Article 227 of the Constitution of India seeking the following relief: “To issue an order or direction quashing Ext.P2 and permit the petitioner to act as next friend of the first plaintiff M.K.George, Muthupunnackal House, Thalappulam Kara, Erattupetta Village.” 2. Petitioner is the 2nd plaintiff in O.S.No.88/2003 on the file of the Munsiff Court, Erattupetta. Suit was for setting aside a document and for prohibitory injunction setting forth a case that the 1st plaintiff, the executant of that deed, on the date of execution and continuously thereafter, suffered from mental illness and thus incapable of having any disposing mind. The application moved under Order XXXII Rule 15 CPC to permit the 2nd plaintiff to act as the next friend of the 1st plaintiff for prosecution of the suit, after hearing both sides, was dismissed by the learned Munsiff taking note that in a previous suit between the parties an issue had been framed as regards the mental W.P.(C).No.37940 of 2008 - N 2 fitness of 1st plaintiff and after adjudication a finding entered that he has of sound mind. In the light of inter party judgment, a copy of which was produced before the court, the learned Munsiff declined the request made by the 2nd plaintiff to represent the 1st plaintiff as the next friend and the application under Order XXXII Rule 15 CPC was dismissed. Ext.P1 is the copy of the judgment in the previous suit. Ext.P3 is the order passed by the learned Munsiff dismissing the application filed under Order XXXII Rule 15 CPC. Petitioner preferred an appeal before the Sub court, Pala and that was dismissed by Ext.P4 as not maintainable. Questioning the propriety and correctness of Ext.P2 order of the learned Munsiff, petitioner has filed this writ petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. 3. I heard the counsel for the petitioner. 4. Having regard to the submissions made and the facts and circumstances presented and the materials produced along with the petition, especially Ext.P1 judgment rendered by a competent civil court which has become final and in which the W.P.(C).No.37940 of 2008 - N 3 issue of soundness of mind of the 1st plaintiff in the present suit was adjudicated in a suit between the same parties, I find there is no merit in the present writ petition impeaching the correctness of Ext.P2 order passed by the learned Munsiff, and the writ petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-