Allowed

Vimala Moni v. United Trading Finance

Kerala HC5 Dec 2018RP/487/2018

Case brief

AI extract

What is this about?

The High Court allowed an appeal against a High Court order remanding a case. The court held that after enquiry, the plaintiff was sound mind; her death terminated the suit instituted by a next friend without authority. The remand could not resurrect a time-barred claim as the right of suit had expired.

What did the court decide?

The impugned judgment remanding the case to the trial court was set aside and the appeal was allowed.

Vimala Moni Vs United Trading Finance — Civil Procedure and Limitation | Kerala HC (2018)

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C.R.

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.HARIPRASAD

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FRIDAY, THE 7TH DAY OF DECEMBER, 2018/16TH AGRAHAYANA, 1940

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FAO (RO).No. 71 of 2018

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AGAINST THE JUDGMENT DATED 30.11.2017 IN A.S.NO.82/2008 OF ADDITIONAL DISTRICT COURT-II, THALASSERY

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AGAINST THE JUDGMENT AND DECREE DATED 11-04-2008 IN OS NO.91/2008 of MUNSIFF'S COURT, KUTHUPARAMBA

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APPELLANT/RESPONDENT NO.1/DEFENDANT:

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C.V. PREMAKUMARI, D/O JANAKI,AGED 67 YEARS,NO OCCUPATION,ASWATHI, 6TH MILE,KOTTAYAM AMSOM,ERUVATTY DESOM, P.O.KOTTAYAMPOIL,KANNUR DISTRICT,PIN-670691.

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BY ADV. SRI.R.SURENDRAN

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RESPONDENTS/SUPPL. APPELLANT NO.2 & RESPONDENTS:-

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1 C.V.PAVITHRAN,S/O JANAKI,AGED 69 YEARS, ELECTRICIAN,JANAKI SADAN,KUTHUPARAMBA AMSOM,NARAVOOR DESOM,THALASSERY TALUK,KANNUR DISTRICT,PIN-670643.

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2 C.V.CHANDRAMATHI,D/O.JANAKI,AGED 63 YEARS, NO OCCUPATION,SANDRA,KOMMAL VAYAL,P.O.TEMPLE GATE,THALASSERY,KANNUR DISTRICT,PIN-670102.

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3 C.V.BALAKRISHNAN,S/O JANAKI,AGED 60 YEARS, NO.3 EUROPEAN LINE,ST.THOMAS MOUNT,MADRAS-600016.

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4 C.V.SASIDHARAN,S/O JANAKI,AGED 52 YEARS, RESIDING AT AISWARYA,PACHAPOIKA,PATHIRIYAD, KUTHUPARAMBA,KANNUR DISTRICT,PIN-670741.

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R1 BY ADV. SRI.SIVAN MADATHIL

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THIS FIRST APPEAL FROM ORDER - REMAND ORDER HAVING BEEN FINALLY HEARD ON 16.11.2018, THE COURT ON 07.12.2018 DELIVERED THE FOLLOWING:

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FAO(RO) No.71 of 2018

C.R.

A.HARIPRASAD, J.

-------------------------------------F.A.O.(RO) No.71 of 2018

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Dated this the 7^th day of December, 2018

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JUDGMENT

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At times, facts are stranger than fiction. Sudden turn of events can impact on the fortunes of a human being, likewise the litigations are also unfavourably affected. Narration of facts will justify the above statements.

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Challenge in this appeal, by the defendant in the suit, is against an order of remand passed by the Additional District Judge-II, Thalassery in A.S.No.82 of 2008. The plaintiff in O.S.No.91 of 2008 before the Munsiff, Kuthuparamba preferred that appeal. 1^st respondent herein, purported to be on behalf of his alleged mentally infirm sister Rohini, filed a suit for declaration that a registered document executed by Rohini is null and void and also for a consequential relief of prohibitory injunction. Clear allegations are made in the plaint that Rohini was mentally and legally an infirm person and the document did not bind her. By invoking the provisions in Order XXXII Rule 15 of the Code of Civil Procedure, 1908 (in short, “the Code”) the court below conducted an enquiry in respect of Rohini's mental condition. She was found to be in good state of mind and she was not mentally infirm at the time of presentation of the plaint. It was also found that Rohini did not require a next friend to institute a suit on her behalf. On finding that the next friend had no locus standi

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to present the plaint on behalf of Rohini, the court below rejected the plaint. Against the order of rejection, the 1^st respondent herein, as the next friend of Rohini, preferred the appeal before the District Court.

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Denouement is the death of Rohini pending the appeal. It is noteworthy that the appellate court did not conduct any enquiry under Order XXXII Rule 15 of the Code, despite there was a finding by the trial court that the ostensible plaintiff Rohini was of sound mind. Lower appellate court found that rejection of the plaint was legally improper. However, it felt that an opportunity should be given to the legal heirs of deceased Rohini to proceed with the suit by intervening in the proceedings. For the said purpose, the order of rejection was set aside and the case was remanded to the trial court. That judgment is under challenge in this appeal.

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Heard the learned counsel for the appellant and contesting

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respondent.

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The substantial questions of law arising for determination are:

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i. When a suit is instituted by a next friend and on enquiry the court

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finds that the plaintiff is not suffering from any mental illness or disability and the next friend is found to be without any locus standi, can an appeal be maintained by the very same next friend on behalf of the plaintiff and that too without any enquiry in the appeal under Order XXXII Rule 15 of the Code?

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ii. Should the trial court have granted an opportunity to the original plaintiff to elect whether she was intending to proceed with the suit?

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iii. When the person described as the plaintiff died pending the

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appeal preferred by the putative next friend, could the appeal be continued by legal representatives?

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iv. Can by way of a remand order, an action, barred by law of limitation, be resurrected, when no independent suit was instituted by the legal heirs of deceased Rohini challenging the sale deed within the period of limitation?

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Lower appellate court found that rejection of the plaint on the

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ground that the plaintiff was not a mentally infirm person cannot be sustained because none of the grounds under Order VII Rule 11 of the Code justify the rejection. For clarity, Rule 11 of Order VII of the Code is reproduced hereunder:

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“ 11. Rejection of plaint.- The plaint shall be

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rejected in the following cases :-

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(a) where it does not disclose a cause of

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action;

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(b) where the relief claimed is undervalued,

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and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

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(c) where the relief claimed is properly

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valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by

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the Court, fails to do so;

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statement in the plaint to be barred by any law;

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(e) where it is not filed in duplicate;

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(f) where the plaintiff fails to comply with the

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provisions of rule 9:

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Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend

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such time would cause grave injustice to the plaintiff.”

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Clause (d) of Order VII Rule 11 of the Code is the only nearest provision applicable here. It says that a plaint shall be rejected where it appears from the statement in the plaint that the suit to be barred by any law. Merely on finding that deceased Rohini was of sound mind, it cannot be regarded as a reason to hold that the statements in the plaint are barred by law. Decisions on this subject would show that Clause (d) of Order VII Rule 11 of the Code can be invoked only when the plaint averments reveal a prohibition by any law in proceeding with the suit, like the law of limitation or any other statutory bar. I am of the firm view, therefore, that even Clause (d) of Order VII Rule 11 of the

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Code could not have been invoked by the trial court to reject the plaint. To this extent, I agree with the lower appellate court that the suit was wrongly rejected by the trial court.

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Nevertheless, the observation by the lower appellate court that a court has no power to reject a plaint outside the prescriptions in Order VII Rule 11 of the Code may not be fully correct. In one instance, the Supreme Court in T.Arivandandam v. T.V.Satyapal and another (AIR 1977 SC 2421) held thus:

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“We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsiff's Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsiff must remember that if on a meaningful - not formal - reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O.VII R.11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. …...”

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I caution the subordinate courts not to understand the principles in the decision that under any and all circumstances a plaint can be rejected for reasons not mentioned in Order VII Rule 11 of the Code. It is the inviolable general rule that a plaint can be rejected only under the grounds in Order VII Rule 11 of the

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Code. But, at the same time, it should be borne in mind that the grounds of rejection stated in Rule 11 of Order VII are not exhaustive. For example, where a plaint was signed by a person not authorised to do so and the plaintiff did not remedy the defect when called upon to do so, the court could reject the plaint under this rule (see Radakishen v. Wall Mohamme - AIR 1956 Hyderabad 133(DB)). I point out this principle only to clarify the position that a plaint can be rejected even for reasons not covered by Order VII Rule 11 of the Code, if there are grave situations which may result in an abuse of the process of court or which may tend to promote frivolous, vexatious and meritless litigations. It is to be remembered that only in extraordinary situations, extraordinary remedies can be resorted to. However, in this case, the principles in the above decisions are totally inapplicable.

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In this context, it will be useful to refer to the relevant provisions under Order XXXII of the Code. Order XXXII Rule 1 says that every suit by a minor shall be instituted in his name by a person, who in such suit shall be called the next friend of the minor. It is a well settled proposition in law that unlike a guardian appointed under Rule 3 of Order XXXII of the Code, a next friend is not appointed by the court, but he comes forward voluntarily to institute a suit on behalf of a minor. However, there are safeguards provided under Order XXXII itself to protect the interest of the minor. Rule 2A of Order XXXII of the Code speaks about the liability of a next friend to furnish security when court so makes an order. Rule 4 of Order XXXII clearly says who are the persons competent to act as next friend or be appointed guardian for the

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suit. In order to secure the interest of a minor, either as plaintiff or defendant, Rule 7 is enacted in Order XXXII of the Code requiring the leave of the court to compromise a suit. On a reading of Rule 15, it will be clear that all provisions, except Rule 2A dealing with furnishing of security by next friend, would apply to persons of unsound mind. The provision is extracted hereunder for a better understanding:

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“ 15. Rules 1 to 14 (except rule 2A) to apply to persons

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of unsound mind .- Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued.”

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This Court in Syed Hassan v. Chirutha (1987 (2) KLT 242) has held thus :

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“ It is a pre-requisite of a suit sought to be file by next friend that the court should of its own motion conduct an enquiry in accordance with the provisions of O.32. R.15 of the Code of Civil Procedure before accepting the plaint filed in the name of the idiot by next friend. It is only upon due satisfaction of the court as contemplated by these provisions of the Code of Civil Procedure

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that the court shall accept the plaint and issue notice to the defendants. Thereupon it is open to the defendants, if they wish,

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to challenge the plaint allegations regarding insanity, and, in that event the court would raise an issue specifically on the point and have it tried.”

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Records show that the trial court had violated this principle.

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On a reading of Rule 15 quoted above, it can be seen that the situations contemplated in Rule 12 of Order XXXII will be applicable in the case of persons adjudged, before or during the pendency of the suit, to be of unsound mind and also to persons who, though not so adjudged, are found by court on enquiry to be incapable, by reason of any mental infirmity of protecting their interest when suing or being sued. Rule 12 of Order XXXII of the Code is extracted hereunder for completion of the discussion:

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“ 12. Course to be followed by minor plaintiff or

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applicant on attaining majority .-(1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.

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(2) Where he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name.

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(3) The little of the suit or application shall in such case be corrected so as to read henceforth thus:

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“A.B., late a minor, by C.D., his next friend, but now having attained majority.”

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(4) Where he elects to abandon the suit or

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application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.

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(5) Any application under this rule may be made ex parte but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.”

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The principles stated herein above in respect of a minor plaintiff will squarely apply to a mentally infirm person referred to in Rule 15 of Order XXXII of the Code. The alleged mentally infirm person, after a due enquiry, if found by the court to be of sound mind, can elect to proceed with the suit. Then the court will proceed further. And if he elects to abandon it, the suit is to be dismissed on re-payment of costs incurred by the opposite party or which may have been paid by the next friend. It is abundantly clear from the above provisions that once the court, on a proper enquiry, finds that the so called mentally infirm person is capable of taking a decision by himself as he is of sound mind, then it becomes the legal obligation for the court to ascertain whether he elects to proceed with the suit by taking proper steps in that regard or to get it dismissed. This duty was not performed by the trial court. In this view of the matter also, I find that rejection of the suit was highly improper.

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Admittedly in this case, the trial court did not give an opportunity to

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deceased Rohini to exercise her option either to continue or abandon the suit. It is argued by the learned counsel for the appellant that Rohini did not sign the plaint as required under Order VI Rule 14 of the Code. On a scrutiny of the original plaint, it can be seen that the next friend had signed the plaint purportedly on behalf of Rohini. Trial court, after having found that Rohini was not an infirm person governed by Rule 15 of Order XXXII, should have seen that the plaint is not signed by the person shown as plaintiff therein and the person who signed the plaint does not have any authority to sign on behalf of Rohini. There is no case that the respondent signed the plaint as a recognized agent under Order III of the Code. In the peculiar facts in this case, he cannot raise such a plea is also clear. In the absence of the plaintiff's expression of willingness to continue the suit, the trial court should have at the most returned the plaint finding that it was not properly instituted. From this angle also, it can be seen that rejection of the plaint was illegal.

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Whether the next friend has any right to file appeal should be decided in this context. Neither Section 104 nor Order XLII of the Code permits an appeal in a situation visualized under Order XXXII Rule 12. The appeal could be filed only on account of an improper rejection of the plaint. If the trial court on noticing that the so called plaintiff, who was found to be sane and capable of taking care of herself, had not opted to prosecute the suit further, it should have dismissed the suit. Obviously, then the next friend would not get any right to file an appeal, since he cannot be regarded as the plaintiff in the suit or anyone affected by the decree of dismissal. If the trial court had

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returned the plaint finding that the named plaintiff had not put her signature on it, then also the next friend could not have filed an appeal since he would suffer no legal injury. However, the issues were complicated by the trial court by rejecting the suit, giving a chance to the next friend to file an appeal by treating rejection of the plaint as a decree.

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Since the findings of the trial court that deceased Rohini was of stable mind, that she did not require a next friend to prosecute the suit and also that the next friend had no locus standi to file the suit on behalf of Rohini, were challenged in the appeal, the court below could have independently conducted an enquiry as contemplated under Order XXXII Rule 15 of the Code, especially when no procedural irregularity could be seen in the proceedings of the trial court. Failure to do so is a flaw in the procedure adopted by the court below.

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From the records it is seen that after appearance of the defendants before the trial court, I.A.No.815 of 2008 was filed under Order XXXII Rule 15 of the Code requesting the court to conduct an enquiry into the mental health of Rohini. In fact, even without that application the trial court should have embarked upon an enquiry under Order XXXII Rule 15 of the Code when the plaint was presented. It is seen that a commissioner was appointed by the trial court as per orders on I.A.No.675 of 2008 filed by the next friend. After examining deceased Rohini, the commissioner filed a report on 29.03.2008 opining that she answered all the questions properly. According to the commissioner, after the voire dire, Rohini wanted to lie down

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complaining back ache. She was lean and her voice was feeble. But the commissioner's report would show that she had answered the questions coherently.

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The report submitted by the commissioner would show that deceased Rohini was examined on 29.03.2008. Records in the case show that on 11.04.2008 Rohini was brought to the court and the Presiding Officer himself conducted an enquiry under Order XXXIII Rule 15 of the Code by asking pertinent questions. For all the questions she had sensibly answered. On this ground therefor on 11.04.2008 the trial court, after recording its reasons, rejected the plaint. As mentioned earlier, even if rejection of the plaint is regarded as bad in law, it can be seen from the records that the procedure under Order XXXII Rule 15 of the Code have been complied with by the trial court. Hence, the only question that could have been decided by the appellate court is regarding the legality and propriety of the enquiry conducted by the trial court under Order XXXII Rule 15 of the Code. Unfortunately, Rohini died pending the appeal. In the legal sense, it terminated the litigation because deceased Rohini was depicted as the plaintiff in a plaint to which she did not subscribe her signature. The trial court, rightly or wrongly, found that she was capable of prosecuting the case by herself without the help of a next friend. In that sense, death of Rohini, the mistress to the suit, put an end to the litigation.

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It was legally incompetent for the lower appellate court to remand a non est appeal with certain directions to implead the legal heirs of deceased Rohini. Had Rohini lived through the pendency of the appeal and if the

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appellate court, on a due consideration of the aspects involved in Order XXXII

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Rule 15 of the Code, had taken a decision against the trial court's view, a remand could have been justified. Legal effect of Rohini's death is that the person shown as plaintiff in a suit, who did not sign the plaint nor did institute it in the legal sense, has vanished from the scene and the next friend without a plaintiff in a suit cannot prosecute the case further. From the pleadings it will be clear that the next friend, who is the brother of deceased Rohini, had no independent legal right to institute a suit during the life time of Rohini. Therefore, he could not have been joined as a co-plaintiff in the suit during her life time. Viewing from any angle, it will be clear that death of Rohini would exterminate the litigation for the reason that the suit was not instituted by her and the next friend had no locus standi to continue such a litigation. Therefore, impleadment of the legal heirs of the alleged plaintiff is a legal impossibility and therefor inconceivable.

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For the above reasons I find that the substantial questions of law (i) to (iii) are to be answered in favour of the appellant and against the respondents. Unhesitatingly I do so.

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It is also argued by the learned counsel for the appellant that the document sought to be declared as null and void was executed in the year 2008. The suit was also filed in the same year. The appeal was disposed by the lower appellate court on 30.11.2017. Going by the reliefs claimed in the suit, Article 58 of the Limitation Act, 1963 applies to the case and the period of limitation prescribed is three years starting from the date of accrual of the right

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to sue for the first time. The avements in the affidavit filed in I.A.Nos.737 of 2009 and 740 of 2009 before the lower appellate court would show that Rohini died on 23.05.2008. It is therefore indisputable that as on the date of the order of remand, viz., 30.11.2017, the right to sue accrued to the legal representatives of deceased Rohini had been barred by law of limitation. It is an admitted fact that no independent suit had been filed by the legal representatives of deceased Rohini challenging the document involved in the present suit. Therefore, I am of the view that the order of remand will tend to resurrect a barred claim. In this view of the matter also, the remand order is unsustainable in law. Hence, all the substantial questions of law are decided in favour of the appellant.

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In the result, the appeal is allowed. The impugned judgment in A.S.No.82 of 2008 on the file of the Additional District Court-II, Thalassery is hereby set aside. If the person who presented the plaint so desires, it shall be returned to him.

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All pending interlocutory applications will stand closed.

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A.HARIPRASAD, JUDGE.

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cks

Vimala Moni v. United Trading Finance

Case brief

What is this about?

What did the court decide?

Vimala Moni v. United Trading Finance

Case brief

What is this about?

What did the court decide?

What the court decided

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