Review petition assailing an order appointing a next friend for a mentally infirm plaintiff. The High Court held that the lower court conducted a proper enquiry and the impugned judgment was correct in law and fact, dismissing the review as meritless exercising power under Article 227 sparingly.
Review petition dismissed with no interference in the impugned judgment.
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.
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R.P No.596 of 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 11TH DAY OF SEPTEMBER 2023 / 20TH BHADRA, 1945
RP NO. 596 OF 2023
AGAINST THE ORDER/JUDGMENT OP(C) 1663/2020 OF HIGH COURT OF KERALA
PETITIONER/S:
RAJASREE,AGED 51 YEARS,KANDAMKORATH HOUSE, NJAMANENGAD.P.O,
KUNNAMKULAM (VIA), THRISSUR DISTRICT, PIN - 679563
BY ADV V.C.MADHAVANKUTTY
RESPONDENT/S:
1 SANTHAKUMARI(MENTALLY RETARDED PERSON) AGED 47 YEARS,VAILATHOORAMSOM AND DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT, REPRESENTED BY HER CLOSE RELATIVE RAMADEVI, AGED 52 YEARS, D/O KRISHNA PANIKKAR, PLOT NO. 48, SREEDURGA ESTATE, NEAR JEECHIMELTA, HYDERABAD, PIN - 5000552 SARASWATHY AMMA,AGED 62 YEARS,D/O. PANTHAMPULAKKAL DEVAKI AMMA, ORUMANAYOORAMSOMDESOM, CHAVAKKAD TALUK, NOW RESIDING AT SARASWATHI AMMA, KANDAMKORATH HOUSE, NJAMANENGAD.P.O, KUNNAMKULAM (VIA), THRISSUR DT, PIN - 6795633 JAYARAJAN,AGED 40 YEARS,S/O. SARASWATHY AMMA, 1ST RESPONDENT, -DO-, NOW AT JAYARAJAN, KANDAMKORATH HOUSE, NJAMANENGAD.P.O, KUNNAMKULAM (VIA), THRISSUR DT, PIN - 6795634 JAYASREE,AGED 38 YEARS,D/O. SARASWATHY AMMA, 1ST RESPONDENT, -DO-, NOW AT JAYARAJAN, KANDAMKORATH HOUSE, NJAMANENGAD.P.O, KUNNAMKULAM (VIA), THRISSUR DT, PIN - 6795635 KOCHUGOPU,AGED 36 YEARS,S/O. SARASWATHY AMMA, 1ST RESPONDENT, -DO-, NOW AT JAYARAJAN, KANDAMKORATH HOUSE, NJAMANENGAD.P.O, KUNNAMKULAM (VIA), THRISSUR DT., PIN - 6795636 SURESH,AGED 25 YEARS,S/O LATE PANTHAMPULAKKAL MALATHY AMMA, ORUMANAYOORAMSOM AND DESOM, CHAVAKKAD TALUK, NOW AT SURESH,KANDAMKORATH HOUSE, NJAMANENGAD.P.O, KUNNAMKULAM (VIA), THRISSUR DT, PIN - 6795637 JACOB,AGED 46 YEARS,S/O. THALAKKOTTOOROUSEPPUNNI, VAILATHOORAMSOMDESOM, CHAVAKKAD TALUK, PIN - 679563 BY ADV P.RAMACHANDRAN -R1THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 11.09.2023, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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R.P No.596 of 2023
C.S DIAS,J.
R.P No.596 of 2023
----------------------------Dated this the 11th day of September, 2023.
ORDER
The review petition is filed assailing the judgment rendered by this Court in OP(C) No.1663/2020. The review petitioner was the petitioner and the respondents
were the respondents in the above original petition.
against the respondents 2 to 7 before the court below
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R.P No.596 of 2023
and it was only in 2015 that the application to appoint a next friend was filed. In fact, the application to appoint the next friend was filed along with POP No.15/2004 before the court below, which was converted to the suit. The decision relied on by this Court in Mary vs. Leelamma and another [2020 (4) KHC 176 (DB)] has no connection with the facts of the case on hand. Even after the suit was filed, the plaintiffs were examined as witnesses in CC No.847/2004 before the Judicial First Class Magistrate Court, Kunnamkulam, which substantiate that they have no mental illness. But this Court has failed to take note of the said depositions. Furthermore, in Premakumari C.V vs. C.V Pavithran [2018 (5) KHC 943], this Court has held that it was always open to the defendants to
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R.P No.596 of 2023
challenge the plaint allegation that the plaintiff is a person of unsound mind. Similarly, in Balakrishnan vs Kalliyani [ 1957 KHC 48] and Roy Thomas vs Lekha Roy [ 2019 (2) KHC 130], this Court has held that a proper enquiry has to be conducted before appointing a guardian under Order 32 Rule 15 of the Code. The major questions involved in the original petition were not considered by this Court in the impugned judgment, which is an error apparent on the face of the judgment. Hence, the review petition.
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R.P No.596 of 2023
court below found that there was no illegality in a next friend representing the plaintiffs – the first respondent
and her brother. The said order was challenged before
this Court in OP(C) No.2026/2015. This Court allowed
the original petition by holding thus:
“4. xxx xxx xxx xxx
It appears from Ext.P1 that the court below did not consider the report of medical examination of the plaintiff. Since the court below did not consider the report of the medical examination of the plaintiff before passing Ext.P1 order, I am inclined to set aside Ext.P1 order and direct the court below to consider the matter afresh, in accordance with law. It is ordered accordingly.
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R.P No.596 of 2023
This Original Petition stands disposed of as above.
This being a matter of the year 2015, the court below is directed to pass order afresh, as expeditiously as possible and at any rate within one month from the date of receipt/production of a copy of this judgment.
DW1 were examined and Exts A1 to A13, B1 to B10 and X1 to X1(c) were proved through them. The court
below after analysing the materials on record and conducting the voir dire test of the first respondent as contemplated under Order 32 Rule 15 of the Code, and particularly considering Ext A4 medical certificate issued by PW4, who testified that the first respondent is suffering from chronic schizophrenia, arrived at the conclusion that the first respondent is incapable of protecting her interest. It is not disputed that the first respondent’s brother died during the period.
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R.P No.596 of 2023
petition filed under Article 227 of the Constitution of India.
that a proceeding to appoint a next friend is summary in
nature.
as to whether the first respondent is capable of conducting the proceeding by herself and concluded in the negative that the first respondent requires a next
friend.
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R.P No.596 of 2023
Division Bench of this Court has succinctly laid down
the law that even a deaf and dumb person can be termed as a person falling within the term ‘mentally infirm’, and the said term has to be given a very expansive interpretation.
record and the law laid down in Mary vs Leelamma and another that this Court has passed the impugned judgment. The decision in Roy Thomas (supra) has no application to the facts of the instant case because that was a case relating to appointment of a guardian and not a next friend, wherein this Court held that a stricter
approach is to be adopted.
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R.P No.596 of 2023
Court under Article 227 of the Constitution of India is
to be sparingly exercised and in cases of exceptional rarity, that too, to keep the Courts of the District Judicature within their bounds of authority.
In the above conspectus, I do not find any error apparent on the face of record warranting interference with the impugned judgment by exercising the review jurisdiction. The review petition is meritless and is hence, consequentially dismissed.
sd/-
Sks/11.9.2023 C.S.DIAS, JUDGE
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R.P No.596 of 2023
APPENDIX OF RP 596/2023
RESPONDENT EXHIBITS
Exhibit-R1(a)True copy of the screen shot showing the
recent proceedings date in respect of
O.S.8/2015 on the file of Sub Court,
Chavakkad obtained from the ECourts
services
2 issues framed by the court
Whether there is error apparent on the face of the record in the order appointing a next friend for a mentally infirm plaintiff under Order 32 Rule 15 CPC.
Whether the review petition assailing the impugned judgment warrants interference under Article 227 of the Constitution.
Colour shows how this judgement treated each authority
Mary vs. Leelamma and anotherRelied on¶9
Mary vs. Leelamma and another [2020 (4) KHC 176 (DB)]
Premakumari C.V vs. C.V PavithranDistinguished¶3
Premakumari C.V vs. C.V Pavithran [2018 (5) KHC 943]
Balakrishnan vs KalliyaniDistinguished¶3
Balakrishnan vs Kalliyani [ 1957 KHC 48]
Roy Thomas vs Lekha RoyDistinguished¶3
Roy Thomas vs Lekha Roy [ 2019 (2) KHC 130]
Original Petition No.1663/2020Reversed¶6
OP(C) No.1663/2020
Rajasree
Santhakumari
Saraswathy Amma
Jayarajan
Jayasree
Kochugopu
C.S. Dias
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court