THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR APPEAL SUIT No.2378 of 1999 Dated:- 09th June, 2011 Between:- Thota Venkata Subba Rao and others …Petitioners / Appellants AND Thota Naga Siromani and others …Respondents / Respondents THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR APPEAL SUIT No.2378 of 1999 JUDGMENT:- (Per Hon’ble Sri Justice V.Eswaraiah) This appeal is directed against the judgment and decree dated 09.03.1999 passed in O.S.No.17 of 1998 by the I Additional District Judge, Guntur, dismissing the suit in view of the earlier orders passed by the said Court in I.A.No.1502 of 1998 and as hit by Order 7 Rule 11 & Order 32 Rule 2 C.P.C. 2. The appellants herein are the plaintiffs in the Original Suit. I.A.No.1502 of 1998 was filed by the first defendant under Order 7 Rule 11 C.P.C., seeking dismissal of the suit on the ground that it is not laid by a proper person, which was allowed by the Court below by order dated 09.03.1999. Earlier, on behalf of the first plaintiff – a mentally retarded person, an I.A.No.357 of 1998 under Order 32 Rule 15 C.P.C. was filed for appointment of his wife as his next friend. The said I.A. was dismissed on the ground that there was a dispute between the wife and the mother of the mentally retarded first plaintiff as both are claiming to be appointed as guardian to the mentally retarded first plaintiff and, thus, it was held that the wife of the first plaintiff cannot be appointed as guardian under the provisions of the Guardian and Wards Act in view of the dispute between her and her mother-in-law. 3. As against the said order in I.A.No.357 of 1998 dated 22.06.1998, the plaintiffs preferred C.R.P.No.3077 of 1998 before this Court and the learned single Judge of this Court, by order dated 05.02.1999, disposed of the said C.R.P. without expressing any opinion on the contentions raised in the revision and directed the trial Court to dispose of the main suit keeping all the options open. 4. No doubt in the above referred C.R.P., the order in I.A.No.357 of 1998 to appoint the wife of the first plaintiff as the next friend and guardian to her mentally retarded husband was neither set aside nor confirmed. Thus, by mere disposing of the above referred C.R.P. directing the trial Court to dispose of the main suit keeping all the options open, it cannot be said that the impugned I.A. therein was confirmed. As the above referred C.R.P. was disposed of directing the trial Court to dispose of the main suit, we are of the opinion that the Court below ought to have taken up the main suit itself for trial. But however, the main suit was dismissed on the ground that I.A.No.1502 of 1998 filed by the first defendant was allowed rejecting the plaint and as hit by Order 7 Rule 11 C.P.C. and Order 32 Rule 2 C.P.C. 5. We have perused the order in I.A.No.1502 of 1998. As far as the contention raised before the Court below that the suit cannot be dismissed as against the second plaintiff is concerned, as the second plaintiff is the minor daughter of the mentally retarded first plaintiff being represented by her mother, the said contention was erroneously rejected by the Court below on the ground that the earlier I.A. filed by the wife of the first plaintiff to appoint her as next friend was dismissed in respect of her husband. We are of the opinion that the dismissal of I.A.No.357 of 1998 cannot have any relevance insofar as the second plaintiff is concerned. The Court below failed to consider that the suit was filed by the plaintiffs 1 and 2. Even if there is any dispute as to who should be the guardian of the mentally retarded first plaintiff, in fact, there was no dispute so far as the second plaintiff is concerned. Therefore, the order of the Court below is illegal on the face of it, so far it relates to the second plaintiff. 6. Now coming to the aspect of the appointment of the guardian to the first plaintiff, it is the duty of the Court to protect the interest of the parties. Moreover, as on today, the second plaintiff appears to have attained majority. Her age was shown as 6 years as on the date of the filing of the suit in the year 1998. Therefore, by this time, she must have attained the age of 19 years. Therefore, the suit filed by the second plaintiff has to be continued. As far as the first plaintiff is concerned, the Court below ought to have considered Order 32 Rule 4 C.P.C., which reads as follows:- “Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may, direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested (or of the property of the minor) and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.” 7. Therefore, even assuming that there were disputes between the mother and wife of the mentally retarded first plaintiff, the Court below ought to have followed the relevant provisions to protect and safeguard the interests of the first plaintiff, who is a mentally retarded person. Moreover, admittedly, the mother of the first plaintiff has not come forward to act as guardian in these proceedings. In view of the disposal of the above referred revision by this Court with a specific direction to dispose of the main suit, the Court below ought to have appointed the second plaintiff as the guardian of the first plaintiff. Moreover, Sri V.Parabrahma Sastry, learned counsel for the appellant has informed this Court that though an O.P. was filed on behalf of the first plaintiff seeking divorce against his wife, it was dismissed. Admittedly, after the dismissal of the said O.P., the mother of the first plaintiff has not filed any application to appoint her as the guardian of the first plaintiff. If at all she had any interest to be appointed as guardian, she would have come forward to act as guardian of her son to protect his interest. 8. Thus, it is clear that the mother of the first plaintiff did not come forward to act as guardian to protect the interest of the person and the property of the mentally retarded first plaintiff and admittedly, no divorce was granted by any Court dissolving the marriage of the mentally retarded first plaintiff and his wife. In view of the same, we are of the opinion that there cannot be any better person other than the wife of the mentally retarded first plaintiff, who has a daughter, i.e., the second plaintiff, to protect the property and the interest of the mentally retarded first plaintiff in a joint family. Thus, we are of the considered opinion that the impugned order is liable to be set aside. 9. Accordingly, the Appeal Suit is allowed by setting aside the impugned order and the matter is remitted back to the Court below for early disposal of the main suit, preferably within a period of six (06) months from the date of receipt of copy of this order. No costs. _____________________ Justice V.Eswaraiah __________________________ Justice B.Chandra Kumar 09th June, 2011 Bvv