Vijay Kumari Tiwari And Another vs Ramroop And 8 Others
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Allahabad High Court

Vijay Kumari Tiwari And Another vs Ramroop And 8 Others on 12 February, 2025

Author: Pankaj Bhatia

Bench: Pankaj Bhatia

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2025:AHC-LKO:8896
 
Court No. - 7
 
Case :- MATTERS UNDER ARTICLE 227 No. - 244 of 2025
 

 
Petitioner :- Vijay Kumari Tiwari And Another
 
Respondent :- Ramroop And 8 Others
 
Counsel for Petitioner :- Santosh Kumar Dwivedi
 

 
Hon'ble Pankaj Bhatia,J.
 

1. Supplementary Affidavit along with the Vakalatnama of Sri Gyanendra Pathak on behalf of the petitioners are taken on record.

2. Heard the counsel for the petitioner.

3. The present petition has been filed challenging the order dated 22.02.2019 whereby the application to sue through his next best friend on account of mental incapacity of the plaintiff was allowed as well as the order dated 20.01.2021 whereby the revision was also dismissed.

4. The submission of the counsel for the petitioner is that the suit was filed through the next best friend alleging that the plaintiff was suffering from mental incapacity, the trial court on the basis of the appearance of the plaintiff, prima-facie held that he was suffering from mental incapacity, as such, the suit was allowed to be pursued by the next best friend in exercise of the power under Order XXXII Rule 15 CPC. The said order was challenged in a revision and the revision came to be dismissed by the revisional court holding that no error could be found in exercise of the discretion vested in the trial court.

5. The counsel for the petitioner submits that earlier an order was passed directing the plaintiff to file the certificate in support of the assertions that the plaintiff was suffering from the mental incapacity, however no such certificate was filed and the trial court without there being any material allowed the application and permitted the plaintiff to be pursued by the next best friend, which according to the petitioner, is wrong exercise of jurisdiction.

6. Reliance is placed upon the judgment in the case of Somnath vs. Tipanna Ramchandra Jannu; AIR 1973 BOM 276 wherein the following has been emphasized in para 17, which is as under :

"The above discussion clearly leads to the logical conclusion that when the plaint is being examined for the purpose of admission, if it contains a statement as required by clause (d) of Rule 1 of Order 7 that the plaintiff is a person of unsound mind and that a next friend is suing on his behalf, the court must at once hold an inquiry. It is the duty of the court to do so and it is not necessary for the next friend to make a separate application for that purpose. This inquiry should ordinarily include the calling of the plaintiff himself and questioning him in Court. If the Court entertains doubt about the mental capacity or the soundness of his mind, it is open to the Court to take further assistance in the form of medical examination and the evidence of the doctor under whose observations the plaintiff may be kept. The quantum and extent of inquiries must be left in each case to the circumstances prevailing. There may be a plaintiff who on immediate view may appear to be a person of unsound mind, and the Court may not need much evidence beyond recording of the questions put to and the answers given by the person concerned. There can be other cases which are not so clear and more evidence may be necessary. However, apart from the total extent of the evidence that might be led, we would suggest that as a matter of strong commonsense approach, the plaintiff who is alleged to be of unsound mind should be invariably called for being questioned when the case falls under the second part of Rule 15 of Order 32. This inquiry is made "for the purpose of recording a finding by the court that the plaintiff is a person of unsound mind, or a person mentally so infirm as to be incapable of protecting his own interests. The provisions of Rule 15 of Order 32 makes it possible for a next friend to sue on behalf of an adult person as a next friend only when the person is either so adjudged by a court of competent jurisdiction, or if not so adjudged, is found by the court on inquiry to be so. That is the foundation, prima facie, for a next friend to avail and proceed with the suit. Such inquiry is obviously an ex parte inquiry for the court to give a finding and to admit the plaint and issue the process to the other side."

7. My attention is also drawn to the judgment in the case of Marci Celine D'Souza v. Renie Fernandez, 1998 SCC OnLine Ker 16. The said judgment is also relied upon by the revisional court, wherein the Kerala High Court recorded as under :

"7. Admittedly, the first plaintiff was 73 years of age on the date of filing of the suit viz., 14-10-1985. The learned trial Judge directed the second plaintiff to produce the first plaintiff in Court. The Court recorded the following:

"1st plaintiff is produced by the 2nd plaintiff. It appears that he is weak. Court put questions to the 1st plaintiff, but he did not reply to the questions. ???????.."

On the above, the Court found that the second plaintiff is entitled to prosecute the suit for and on behalf of the first plaintiff. It is true that the Court has not made an elaborate enquiry as to whether the first plaintiff is competent to file the suit. The defendants have no case that the second plaintiff has any adverse interest against the first plaintiff. She has filed an affidavit as contemplated under Section 212 of the Civil Rules of Practice. Therefore, the Court found that the second plaintiff was competent to represent the first plaintiff. The Court is not expected to conduct an elaborate enquiry under Order XXXII. Rule 15 of the Code of Civil Procedure. Before a next friend can represent a person incapable of protecting his rights it is not necessary that there should be a preliminary enquiry and a finding that person by reason of unsoundness of mind or mental infirmity is incapable of protecting his interests. All that is needed is that there must be some prima facie proof such as to satisfy the Court that the person was by reason of infirmity incapable of protecting his interest, because an order permitting the next friend to represent such a person is not final. It is always open to the defendants to take out another application to have the order revoked when the Court can fully go into the matter. The Court below has raised an issue in this case. It is admitted by both the parties, that the first plaintiff was sick and was undergoing treatment. PW-2, who was examined in this case, is a Cardiologist attached to Benzigar Hospital, Kollam. He has deposed that he has treated the deceased plaintiff as an in-patient from 27-4-1984 to 16-5-1984 and 22-5-1984 to 10-7-1984. He issued Ext. A11 medical certificate. According to him, the first plaintiff was suffering from hypertension and cerebral vascular accident, right hemplegia and asphyxia. During hospitalisation, he showed slight improvement by way of recovery of paralysis from right side. But he was disoriented and dysphasic. He was discharged in that condition on 16-5-1984. He was readmitted on 22-5-1984 with sub acute intestinal obstruction and was in the hospital till 10-7-1984. During this period of stay also he was disoriented and dysphasic and hence was advised to go to neurologist for further treatment. According to him, the first plaintiff was not able to speak. The plaintiff also relied on Ext. A14 letter dated 8-6-1984 issued by DW-1. It was a letter written by DW-1 to the second defendant, wherein it is stated that the first plaintiff's condition is very bad, that he simply lies in bed and rolls with pain, that he lost control over his kidneys that everything is done unconsciously and that his speech is not clear. PW-5 is the Professor and Head of Neurology Department. He has deposed that the first plaintiff was under his treatment from July, 1984 onwards. According to him, his blood circulation in the brain was defective; The first plaintiff, who is now no more, developed stroke, as a result of which speech problem was caused to him. The first plaintiff was also not able to move alone. He proved Exts. A12, A12(a) and A12(b). Ext. A12 is of the year 1985. He states that since July, 1984, he was treated for defuse cerebral artherosclerosis with dementia and dysarthria. Cerebral arteriorcleros is a syndrome characterised by progressive memory loss, confusion and child like behaviour. Dementia is an irreversible organic brain disease causing memory and personality disorders, deterioration in personal care, impaired cognitive ability and disorientation. Dysarthria causes neuromuscular disorder affecting the actual formation and articulation of words. All these go to show that the first plaintiff was mentally infirm and as such he was not able to protect his interests. I do not find anything wrong in the finding of the Courts below, regarding the mental capacity of the deceased first plaintiff. Therefore, the finding on issue No. 2 is upheld.

8. In the light of the said, it is argued that no enquiry whatsoever was carried out which is a must while exercise of discretion under Order 32 Rule 15.

9. Considering the judgment in the case of Somnath (supra) wherein the court had held that the nature and the extent of the enquiry is not specified in the CPC and must be left to the discretion of the court concerned.

10. In view of the fact that the revisional court has exercised its discretion, merely because another view is possible, this court cannot interfere. Even otherwise, the writ petition has been filed after about four years of the revisional order being passed, as such, I do not see any reason to interfere with the two orders.

11. The writ petition lacks merit and is dismissed.

Order Date :- 12.2.2025

VNP/-