This civil petition challenged an order removing the petitioner as next friend for a mentally disabled litigant due to failure to remit court fees. The High Court dismissed the petition, finding the lower court correctly appointed an independent advocate to protect the litigant's best interests.
The original petition is dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
OP(C) NO. 316 OF 2022
ARISING OUT OF THE ORDER DATED 25.01.2022 IN IA 8/2021 IN OS
59/2020 OF SUB COURT, PALA
PETITIONER:
TOMSON JOSE
AGED 42 YEARS
S/O. JOSE, NJALLAKKATTU HOUSE, PALA KARA, PALA P.O.,
MEENACHIL VILLAGE, MEENACHIL TALUK, KOTTAYAM
DISTRICT, PIN-686 575
BY ADVS.
P.B.KRISHNAN
P.B.SUBRAMANYAN
SABU GEORGE
MANU VYASAN PETER
RESPONDENTS:
1MERLY
AGED 47 YEARS
W/O. SEEMON THOMAS, UZHUTHUVAL HOUSE, KANJIRAPPALLY
P.O., KANJIRAPPALLY TALUK, KOTTAYAM
DISTRICT-686 507
2 ANIYAMMA JOSE, AGED 68 YEARSW/O.JOSE, NJALLAKKATTU HOUSE, PALA KARA, PALA P.O.,
MEENACHIL VILLAGE, MEENACHIL TALUK, NOW RESIDING AT
NJATTUKALAKKUNNEL APARTMENT, 1ST FLOOR, PALA P.O.,
KOTTAYAM DISTRICT, PIN-686 575
3 JOSE TOM, AGED 65 YEARS S/O. THOMAS, KAVUMPURATHU HOUSE, KOOVAPPALLY KARA, KOOVAPPALLY P.O., KOOVAPPALLY VILLAGE, KOTTAYAM DISTRICT,PIN-686 5184 JOBIN K.THOMAS, AGED 47 YEARS2
O.P(C) No.316 of 2022
S/O. THOMAS MATHEW, KARIPPAPARAMBIL HOUSE,
MADUKKAKKUNNU P.O., ELIKKULAM VILLAGE,
KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT,PIN-686
577
5DR.SWEETYMOL
AGED 41 YEARS
W/O.JOBIN K.THOMAS, KARIPPAPARAMBIL HOUSE,
MADUKKAKKUNNU P.O., ELIKKULAM VILLAGE,
KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT,PIN-686
577
BY ADV ABRAHAM GEORGE JACOB
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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O.P(C) No.316 of 2022
Dated this the 8th day of June, 2022.
JUDGMENT
The original petition is filed to set aside the order in I.A.No.8/2021 in O.S.No.59/2020 (Exhibit P4) of the Court of the Subordinate Judge, Palakkad.
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O.P(C) No.316 of 2022
meantime, the first respondent – a third party to the suit and the elder sister of the parties – filed Exhibit P -2 application to remove the petitioner from the office and status of the next friend of Metty Jose and appoint her in his place because the petitioner is not competent to protect the interest of the Metty Jose and has not remitted the balance court fee within the stipulated time period. The petitioner had filed Exhibit P-3 counter affidavit. The petitioner was directed to appear before the court below in person on 10.01.2022, and he was directed to remit the balance court fee in 10 days. Thereafter, the court below passed the impugned Exhibit P-4 order observing that although sufficient time was granted to the petitioner to remit the balance court fee, he has failed to remit the same. If the balance court fee is not paid, the plaint would be rejected, which will be adverse to the interest of Metty Jose. The court below further observed that even though the 1st respondent had volunteered to remit the
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O.P(C) No.316 of 2022
balance court fee, going by the averments in her affidavit in support of Exhibit P-2 application it could be gathered that she supports the respondents 2 to 4, hence she was also not fit to be appointed as the next friend. Accordingly, the court below removed the petitioner from the office of the next friend and appointed Adv.Gopalakrishnan Nair M.K as the next friend of Metty Jose. Exhibit P-4 is erroneous and wrong. Hence, the original petition.
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O.P(C) No.316 of 2022
“15. Rules 1 to 14 (except rule 2A) to apply to persons 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
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O.P(C) No.316 of 2022
the incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued.
is the concern of the court to protect the interest of a
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O.P(C) No.316 of 2022
person with a legal disability, who is unable to prosecute/defend his interest. The parties to the ‘lis’ or
third parties have no right to dictate to the court that a particular person is to be appointed as the next friend/guardian of a person of unsound mind. It is the statutory duty of the court to appoint the most suitable person to protect the best interest of the person with a legal disability. The jurisdiction exercised by a court under the above provision is similar to the parens patriae jurisdiction that is, to be guided by the sole and paramount consideration of what would subserve the best interest of a person with a disability.
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O.P(C) No.316 of 2022
exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. The original petition is
devoid of any merits and is dismissed.
SD/-
C.S.DIAS, JUDGE
rmm/8.6.2022
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O.P(C) No.316 of 2022
APPENDIX OF OP(C) 316/2022
PETITION |
ER EXH |
IBITS |
|---|---|---|
Exhibit |
P1 |
TRUE COPY OF THE PLAINT DATED 05.12.2020IN OS NO.59 OF 2020 ON THE FILE OF THESUBORDINATE JUDGES COURT, PALA |
Exhibit |
P2 |
TRUE COPY OF THE IA NO.8 OF 2021 IN OSNO.59 OF 2020 ON THE FILE OF THESUBORDINATE JUDGES COURT, PALA |
Exhibit |
P3 |
TRUE COPY OF THE COUNTER-AFFIDAVIT DATEDNIL 01.2022 IN IA NO.8 OF 2021 IN OSNO.59 OF 2020 ON THE FILE OF THESUBORDINATE JUDGES COURT, PALA |
Exhibit |
P4 |
TRUE COPY OF THE ORDER DATED 25.01.2022IN IA NO.8 OF 2021 IN OS NO.59 OF 2020 |
ON THE FILE OF THE SUBORDINATE JUDGESCOURT, PALA |
2 issues framed by the court
Whether there is any illegality or irregularity in the court below's order removing the petitioner as next friend and appointing an independent advocate?
Whether the court below correctly exercised its supervisory jurisdiction under Article 227 regarding the incapacity of the petitioner to protect the interest of a person of unsound mind?
2 provisions across 2 enactments
Tomson Jose
Merly
Aniyamma Jose
Jose Tom
Jobin K. Thomas
Dr. Sweetymol
C.S. DIAS
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court