IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 17TH DECEMBER 2008 / 26TH AGRAHAYANA 1930 WP(C).No. 36357 of 2008(C) -------------------------------------------- IA.244/2008 IN OS.280/2007 of MUNSIFF COURT, PALA .................... PETITIONER: V.K.KOMAN NAIR, AGED 69 YEARS, S/O.V.K.KUNUKUTTAN NAIR, JAI HIND BHAVAN, THEKKUMKATTIL, EAHACHERRY P.O., VELLILAPPILLY KARA & DO VILLAGE, MEENACHIL TALUK. BY ADV. SRI.P.C.HARIDAS RESPONDENT: VINOD K.K, AGED 44 YEARS, S/O.KUMARAN, KANDATHINKARA, MARANGADU KARA,VELLILAPPILLY VILLAGE, MEENACHIL TALUK, REP. BY NEXT FRIEND BIJI VINOD. ADV. SRI.K.THAVAMONY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. Balachandran, J. -------------------------- W.P.(C)No.36357 of 2008 C -------------------------- JUDGMENT Heard counsel for the petitioner/defendant and the counsel for the respondent/plaintiff. 2. Petitioner, who is the defendant in O.S.No. 280/07 on the file of the Munsiff's Court, Pala, filed I.A.No.244/08 in the said suit to conduct an enquiry under Order XXXII Rule 15 CPC, as the suit was filed by the plaintiff represented by his wife as the next friend and guardian. Counsel on both sides submit that inquisition had not been conducted by the court below before granting permission to the guardian to conduct the suit on behalf of the respondent/plaintiff. When it is vehemently argued by the counsel for the petitioner/defendant that the respondent/plaintiff is not one who is not capable of understanding things and managing his own affairs left to himself, the court has a duty to ascertain by conducting an inquisition of the plaintiff and WPC 36357/08 2 satisfy itself as to whether the plaintiff is a person who is competent and capable of understanding things and managing his own affairs. For the purpose, the court should have conducted an inquisition by questioning the plaintiff and ascertained his mental capability. Such course having not been adopted at the stage of appointing his wife as the guardian, I direct the court below to conduct a proper inquisition to get satisfied as regards the mental condition of the respondent/ plaintiff. If the court finds that the plaintiff is competent to manage his own affairs and understands things as an ordinary prudent man, the court shall remove the guardian and direct the suit being prosecuted by the plaintiff himself. If it is otherwise and the court is satisfied that the plaintiff is not capable of managing his own affairs, the order permitting him to be represented by his wife as the next friend and guardian shall continue to be in force. Counsel for the WPC 36357/08 3 petitioner is directed to produce a copy of this judgment in the court below forthwith to enable the court below to act as per the directions given above. The writ petition is disposed of with the above directions. Issue copy of this judgment to the counsel for the petitioner forthwith. 17th December, 2008 (K.P.Balachandran, Judge) tkv