Madras High Court
Manohari vs Sugunathalakshmi on 19 August, 2024
Author: S.S. Sundar
Bench: S.S. Sundar
O.S.A.No.285 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.08.2024
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE K. RAJASEKAR
O.S.A.No.285 of 2021
Manohari ... Appellant
Vs.
1.Sugunathalakshmi
2.Satheeswari
3.Indirani
4.C.L.Mohan Raj
5.C.L.Prabhu
6.C.L.Udayakumar
Represented by his Power of Attorney father
Lakshminarayanan
7.K.Dillibabu
Represented by his Guardian
N.Dillibabu ... Respondents
Original Side Appeal filed under Order XXXVI Rule 1 of Original
Side Rules r/w. Clause 15 of Letters Patent against the order and decree
dated 16.02.2021 in A.No.2599 of 2020 in C.S.No.552 of 2019 on the file
of this Court.
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O.S.A.No.285 of 2021
For Appellant : Ms.Gopika Nambiar
for M/s.G.Nanmaran
For R1 to R6 : Mr.T.N.Rajagopalan
For R7 : Mr.A.Prabhakaran
JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
This Original Side Appeal is directed against the order in A.No.2599
of 2020 in C.S.No.552 of 2019, dated 16.02.2021.
2.Brief facts that are necessary for the disposal of this appeal are as
follows :
2.1.The respondents 1 to 6 herein as plaintiffs filed the suit in
C.S.No.552 of 2019 before the Original Side of this Court for partition of the
suit properties. The appellant herein is the 1st defendant in the suit.
Admittedly, the 2nd defendant in the suit is also entitled to a share in the suit
properties even as per the plaint averments, but he is mentally ill. Therefore,
the suit was filed by the plaintiffs showing one Mr.N.Dillibabu as the
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guardian of 2nd defendant. It is to be noted that the plaintiffs have no claim
as against the 2nd defendant and that none of the plaintiffs have any adverse
interest as against the 2nd defendant.
2.2.The 1st defendant claims exclusive title to one of the items of the
properties on the basis that the property was given to her by the family as
sreedhana.
2.3.It is admitted that the suit was filed on 06.09.2019 and thereafter,
an application in A.No.9502 of 2019 in C.S.No.552 of 2019 was filed by
one Mr.N.Dillibabu for permitting him to act as next friend of 2nd defendant
for contesting the suit. The said application was allowed without hearing the
1st defendant. It appears that the said application was allowed on the basis
of no objection given by plaintiffs.
2.4.It was thereafter, the appellant filed an application in A.No.1201
of 2020 to set aside the order passed in A.No.9502 of 2019 in C.S.No.552 of
2019 and to restore the above application on file and dispose of the same on
merits. The learned Single Judge, after considering the facts and
circumstances elaborately, allowed the application in A.No.1201 of 2020,
and set aside the order dated 21.01.2020 in A.No.9502 of 2019.
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2.5.Thereafter, the application in A.No.9502 of 2019 was supposed to
be heard afresh.
2.6.However, an application was filed by the plaintiffs in A.No.2599
of 2020 in C.S.No.552 of 2019 to pass an order appointing Mr.N.Dillibabu
or any other person as guardian to the 2nd defendant except the 1st defendant.
This application was allowed by the order impugned on 16.02.2021.
Challenging the same, the above appeal is filed by the 1 st defendant in the
suit.
3.Learned counsel appearing for the appellant, who is the 1st
defendant in the suit, contended that the order of the learned Single Judge is
perverse, inasmuch as the previous order dated 24.08.2020 in A.No.1201 of
2020 in C.S.No.552 of 2019, is not even taken note of by the learned Judge.
The learned counsel, apart from the contention that the earlier order passed
in the very same application was ignored, raised several other grounds by
referring to Order 32 Rule 4 of CPC.
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4.Admittedly, the 2nd defendant is a person of unsound mind and
therefore, he has to be represented by a guardian. Even though appointment
of a stranger as guardian is opposed by the appellant, the appellant has no
objection for the 5th plaintiff to represent the 2nd defendant as guardian. The
learned counsel appearing for the plaintiffs have no objection for this course.
Therefore, by consent of parties, this Court is inclined to allow this appeal,
appointing the 5th plaintiff as guardian for the 2nd defendant.
5.Accordingly, this Original Side Appeal is allowed and the order in
A.No.2599 of 2021 in C.S.No.552 of 2019, dated 16.02.2021, is set aside.
However, the 5th plaintiff in C.S.No.552 of 2019 is appointed as guardian to
the 2nd defendant to represent him in the suit.
6.This Court has noted the fact that the plaintiffs have no conflicting
interest with the 2nd defendant. Therefore, this Court wants to put an end to
this issue being raised later. Having regard to the nature of interest which
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we have found, it is open to the plaintiffs to file an application for
transposing the 2nd defendant as one of the plaintiffs, so that there will not be
room for any kind of objection being raised at any point of time later by
referring to Order 34 Rule 4 of CPC. No costs.
(S.S.S.R., J.) (K.R.S., J.)
19.08.2024
mkn
Internet : Yes
Index : Yes / No
Neutral Citation : Yes / No
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S.S. SUNDAR, J.
and
K. RAJASEKAR, J.
mkn
19.08.2024
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