A. Ramachandran Pillai Vs. D. Bharathiyamma and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/947829
CourtKerala High Court
Decided OnJan-12-2012
Case NumberC.R.P. No. 203 of 2009 (C)
Judge K.T. SANKARAN
AppellantA. Ramachandran Pillai
RespondentD. Bharathiyamma and Others
Excerpt:
1. the questions of law involved in this civil revision petition are the following: 1) what is the procedure to be followed when the plaintiff on whose behalf her next friend instituted the suit, comes forward and says that she is not of unsound mind or a person of feeble mind and that she does not want to continue to prosecute the suit? 2) whether it is mandatory to remove the next friend before disposing of the suit on the application of the plaintiff on whose behalf the next friend instituted the suit? 3) whether it is mandatory that after removal of the next friend the suit should be continued by the plaintiff? 4) whether the next friend has any right to cross examine the plaintiff who gives sworn statement before court in an enquiry under rule 15 of order xxxii that she is not mentally infirm or a person of unsound mind? 5) whether the plaintiff in such a suit can approach the court on her own and contend that she is not a person of unsound mind or a person of feeble mind and that she does not want to continue the suit, or is it necessary that an application should be filed on her behalf by some other person or the defendant? 2. the plaintiff in the suit (o.s.no.167 of 2008 on the file of the court of the subordinate judge of thiruvalla) is d.bharathiyamma represented by her next friend a.ramachadran pillai. the defendants in the suit are the daughter of bharathiyamma, the son of first defendant and the assignee of the property from bharathiyamma. 3. the relief prayed for in the suit is for cancellation of the sale deed executed by bharathiyamma in favour of the third defendant in the year 2008 in respect of the plaint schedule property having an extent of 28 ares. 4. in the plaint, the next friend of the plaintiff stated thus: "2. the plaintiff is enfeebled by old age and mentally infirm. on account of her mental infirmity she is incapable of understanding business and forming a rational judgement as to its effect on her. she does not have even the capacity to arrive at reasonable judgement as to the consequences of a contract and its effect on her interest and hence she is represented in this suit by her son as the next friend ....... ..... 12. thereafter he contacted the plaintiff and enquired how and why she executed the sale deed and she told her son that she was unduly influenced by the defendants 1 and 2 and that the sale deed happened to be executed virtually at their end. since the sale deed has been apparently executed by the feeble minded plaintiff and under the undue influence of the defendants 1 and 2 the same is to be adjudged voidable and ordered it to be delivered up and cancelled on the following reasons:- ....... ......." 5. bharathiyamma (the plaintiff) filed i.a.no.1175 of 2008 praying to conduct an enquiry under rule 15 of order xxxii of the code of civil procedure, to take her evidence and any other evidence and to take the suit 'off the file'. in the affidavit accompanying the application, bharathiyamma stated that she is not a person of unsound mind or a person of feeble mind. the suit was instituted by her son as next friend only to wreck vengeance against her. she was having disputes with her son for the last several years. the next friend has no right to institute the suit on behalf of the plaintiff. the plaintiff also stated that o.s.no.282 of 2003 filed by her before the munsiff's court, thiruvalla against the next friend ramachandran pillai is pending in the transferee court. ramachandran pillai had instituted o.s.no.554 of 1998 on the file of the munsiff's court, thiruvalla against bharathiyamma and also defendants 1 and 2 in the present suit. that suit is also pending. the plaintiff also stated that ramachandran pillai had instituted o.s.no.77 of 1998 against her before the munsiff's court, thiruvalla. that suit was dismissed. the appeal and second appeal therefrom were also dismissed. o.s.no.77 of 1998 was a suit for specific performance of an alleged oral agreement for sale in respect of the property in question, filed by ramachandran pillai against bharathiyamma. the plaintiff also stated that on 22.7.2008, ramachandran pillai had filed a caveat before the same court against her and others. in the suits referred to above and in the caveat, she is not described as a person of unsound mind or mental infirmity. the present suit was filed on 14.8.2008. 6. the court below recorded the statement of the plaintiff on oath. she stated before court that since 1998 she is residing with her daughter. she stated before court that she was the plaintiff in a suit before the sub court, thiruvalla and she had a case before that court earlier. the details of the case were stated in her evidence. she stated that she was residing with her son ramachandran pillai after the death of her husband and the behaviour of ramachandran pillai towards her was intolerable. she stated that an extent of 2.5 acres of land was given to her son ramachandran pillai to ensure that she would be protected by him. but he did not do so. therefore, she was constrained to leave her son and to live with her daughter. the plaintiff also stated that the plaint schedule property was sold by her to shukur, the third defendant, on 15.7.2008 and she received consideration for the same. the plaintiff stated thus: she stated that she transferred the property to the third defendant out of her free will and volition. ramachandran pillai was not helping her and the suit was also not to help her. in categoric terms, the plaintiff stated in evidence before court thus: all the relevant details regarding the property, the transfer of the same and the previous litigations in respect of the property were stated by the plaintiff in detail in her sworn statement made before court. 7. the court below allowed i.a.no.1175 of 2008 and the suit itself was dismissed. the learned subordinate judge recorded that after examining the plaintiff, there was no reason to believe that the plaintiff is a mentally ill person. the learned subordinate judge observed that the plaintiff was having sound health, she was capable of understanding things and she gave voluntary statement before court. the learned subordinate judge held that the plaintiff is mentally and physically perfect and sound. it was noticed in the order that ramachandran pillai did not care to give any evidence before court. the order in i.a.no.1175 of 2008 is under challenge in the civil revision petition filed by ramachandran pillai. 8. it is relevant to note here that in paragraph 5 of the plaint itself, the next friend stated thus: "5. however, the next friend of the plaintiff continues to be in possession and enjoyment of the said 65 cents of land and he is taking the yield therefrom. while the plaintiff was planning to dispose of the said property the next friend of the plaintiff on coming to know of it expressed his willingness to purchase the said property and though a concluded contract was entered into between the plaintiff and the next friend on 15.11.96, the plaintiff under the undue influence of the 1st defendant refused to convey the said property which resulted in several suits." 9. it is also relevant to note that in the present civil revision petition, bharathiyamma is the first respondent and no application is filed by the petitioner to appoint a guardian for her. that means, in 2009, when the revision was filed by the petitioner, he has no case that bharathiyamma was having any mental infirmity or that she was of unsound mind. 10. the learned counsel for the petitioner submitted that though ramachandran pillai had filed a suit against his mother (plaintiff in the present suit), that suit had attained finality. the fact that the petitioner lost in the suit does not mean that he is not entitled to protect the interests of his mother, who, according to him, is having a feeble mind and that she is not having a disposing state of mind. the counsel also submitted that at no point of time the petitioner stated that his mother was of unsound mind. his only case was that she was only mentally infirm and she is a person of feeble mind having no disposing state of mind. the counsel contended that even if it is found that the plaintiff is not mentally infirm, the proper procedure would have been removal of the next friend under rule 9 of order xxxii of the code of civil procedure and not to dismiss the suit. the counsel also submitted that the petitioner was not given an opportunity to cross examine the plaintiff. it is submitted that the affidavit in support of i.a.no.1175 of 2008 is in the handwriting of the counsel who appeared for defendants 1 and 2 and the affidavit was attested by a junior advocate in the office of the counsel for defendants 1 and 2. 11. learned counsel appearing for the respondents supported the order passed by the court below and contended that the revision is not maintainable under section 115 of the code of civil procedure. it is submitted that no affidavit of a disinterested person was filed along with the plaint as provided under rule 212 of the civil rules of practice. the learned counsel appearing for the respondents also mentioned the details regarding the suit filed by the petitioner against his mother bharathiyamma for specific performance of an alleged agreement for sale in respect of the same property involved in the present suit. the counsel submitted that the suit filed by ramachandran pillai against bharathiyamma was dismissed by the trial court and the dismissal of the suit was confirmed in appeal and in second appeal. all throughout that litigation, the petitioner had no case that his mother was a person of unsound mind or that she was mentally infirm or that she was a person having a feeble mind. 12. order xxxii of the code of civil procedure provides for suits by or against minors and persons of unsound mind. rule 15 of order xxxii of the code of civil procedure states that "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". every suit by a minor or by a person who is of unsound mind or by a person who is incapable, by reason of any mental infirmity, of protecting his interest when suing, shall be filed by a next friend. where a suit is instituted in such a case without a next friend, the defendant may apply to have the plaint taken off the file, as provided in rule 2 of order xxxii of the code of civil procedure. rule 4 of order xxxii cpc provides as to who may act as the next friend or be appointed as the guardian in the suit. the proviso to sub rule (1) of rule 4 mandates that the interest of the next friend or guardian is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant in the suit, or, in the case of a guardian, a plaintiff. 13. sub-rule (1) of rule 9 of order xxxii cpc reads as follows: "9. removal of next friend.-- (1) where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor's interest will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit, ceases to reside within india, or for any other sufficient cause, application may be made on behalf of the minor or by a defendant for his removal; and the court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit." rule 9 provides for an application to be made on behalf of the plaintiff or by a defendant for the removal of the next friend. but, that does not mean only some other person on behalf of the plaintiff or the defendant can make a prayer for taking the suit off the file. the plaintiff himself may appear before court and establish that he is not a minor or a person who comes under rule 15 of order xxxii cpc, and that he does not want to prosecute the suit. order xxxii does not prevent such a course being adopted by the plaintiff who claims that he is not a person of unsound mind or feeble mind or mentally infirm person or a person who is not capable of protecting his own interest. 14. the learned counsel for the petitioner relied on the decision in syed hassan v. chirutha (1987 (2) klt 242), wherein it was held that it is a pre-requisite that the court should of its own motion conduct an enquiry in accordance with the provisions of rule 15 of order xxxii of the code of civil procedure before accepting the plaint filed in the name of an idiot by his next friend. the learned counsel submitted that in the present suit that stage is over and the plaint was taken on file. thereafter, the court cannot decide the question whether the next friend filed the suit following all the parameters of order xxxii. i do not find anything in the decision in 1987 (2) klt 242 to suggest that the court does not have jurisdiction to make an enquiry under rule 15 of order xxxii cpc, after summons was issued to the defendant. a defendant may put forward a contention that the next friend is not entitled to institute the suit on behalf of the plaintiff, either because the plaintiff is not a person of unsound mind or feeble mind or a person who is not capable of protecting his interest or on the ground that the next friend is having interest adverse to that of the plaintiff. such an enquiry is not barred after the issue of summons to the defendant. in fact, rule 9 of order xxxii cpc provides for removal of the next friend at the instance of a person on behalf of the plaintiff or by the defendant on the ground that the interest of the next friend is adverse to that of the plaintiff. when such an application is filed, an enquiry is to be made as provided in rule 15 of order xxxii cpc. i am not inclined to accept the contention raised by the learned counsel for the petitioner in this regard. 15. in rasheeda v. nazeer (2011(3) klt 218), it was held thus: "4. every suit instituted by a minor or by a person adjudged, before or during the pendency of the suit, to be of unsound mind or by a person who, though not so adjudged, is found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting his interest when suing or being sued, shall be instituted by a next friend on behalf of the plaintiff. every person has a right to institute a suit if he has a cause of action for the same. if such a person is a minor or a person of unsound mind, a next friend can institute the suit on his behalf. a decision rendered in such suit shall be binding on the plaintiff. if the plaintiff is not a person adjudged to be of unsound mind, r.15 of o.xxxii of the code of civil procedure provides that the court shall make an enquiry to ascertain whether the plaintiff is incapable, by reason of any mental infirmity, of protecting his interests. allowing a next friend to institute a suit on behalf of a person on the ground that such person is of unsound mind or a person having mental infirmity, really affects the status of the plaintiff if really he is a person capable of suing. grant of such permission by the court would certainly affect his civil rights. an inbuilt safeguard is made in r.15 of o.xxxii to make an enquiry for the purpose of satisfaction of the court as to whether the plaintiff is incapable of filing the suit by himself or whether a next friend should be allowed to institute the suit on his behalf. if it is found that the plaintiff has no mental infirmity or any other infirmity warranting permission to be granted for the next friend to sue on his behalf, necessarily, no permission can be granted to institute the suit by the next friend. only on finding that the plaintiff is incapable to institute the suit as provided under law, the court would allow the next friend to institute and to prosecute the suit. such an enquiry is mandatory." 16. a division bench of this court in raveendran v. sobhana (2008(1) klt 488) held thus: "10. the decision under o.32 r.15 involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken away, and a guardianship being thrust upon him. in such circumstances, the court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests. if that person is not capable of protecting his interests on his own, the court has an obligation to protect his interests by appointing a next friend and if such person is capable of protecting his own interests, the court has equally an obligation to see that a next friend or guardian is not superimposed on him, thereby depriving him of his right to take his own decisions. in the decision reported in s.c.karayalar v. v.karayalar (1968 mlj 150), it was held that holding of an enquiry under o.32 r.15.... "is thus inescapable and consent cannot vest jurisdiction in court to dislodge or divest the right of a litigant to conduct his suit, by superimposing a guardian or a next friend."" 17. i am also not inclined to accept the contention raised by the learned counsel for the petitioner that without removal of the next friend, the court has no jurisdiction to dispose of the suit accepting the plea of the plaintiff that she is not a person of unsound mind or a mentally infirm person. all that is required is that the court should be satisfied that the plaintiff is either a minor or a person of unsound mind or a person who is not capable of protecting his interest and that it is required to allow the next friend to institute the suit on behalf of such person. if it is found by the court that the interest of the next friend is adverse to that of the plaintiff and that the plaintiff does not want to continue to prosecute the suit, nothing prevents the court from taking the suit off the file. it is not mandatory that the court should first remove the next friend and then allow the prayer made by the plaintiff. it can be done simultaneously. i am also not inclined to accept the contention raised by the learned counsel for the petitioner that after removal of the next friend, it is mandatory that the suit should be continued by the plaintiff. if the court finds that the plaintiff is not a person of unsound mind or having any other infirmity, it is for the plaintiff to decide whether he/she should continue to prosecute the suit or to withdraw the suit or to compromise the suit. 18. if the plaintiff, on whose behalf a next friend instituted the suit, appears before court and proves to the satisfaction of the court that he is not a person of unsound mind or a person having a feeble mind or that he is a person who is capable of protecting his own interest, the court is bound to protect the interest of such plaintiff. when the law provides that the next friend should have no interest adverse to that of the plaintiff on whose behalf the next friend instituted the suit, it cannot be said that the next friend would have a right to cross examine the plaintiff. in an enquiry under rule 15 of order xxxii, the court is not expected to decide the dispute between the plaintiff and the next friend. the enquiry is limited to the question whether the next friend should be allowed to institute the suit on behalf of the plaintiff on the ground that the plaintiff is not entitled to protect his interest or on the ground that the plaintiff is a minor. 19. rule 212 of the civil rules of practice, kerala reads thus: "212. plaint or original petition on behalf of a minor.-- when a plaint or original petition is presented by a person as the next friend of a plaintiff or petitioner, who is a minor or under disability, he shall also file an affidavit by a disinterested person that the next friend has no interest, direct or indirect, in the subject matter of the suit or matter adverse to that of the plaintiff or petitioner, that he is not a defendant or respondent in the suit or matter, and that he is a fit and proper person to act as next friend."the stipulation that an affidavit of a disinterested person should be filed is only to protect the interest of the plaintiff and to ensure that the next friend has no interest, direct or indirect, in the subject matter of the suit. no such affidavit was filed in the present case. that itself is a sufficient ground to reject the contention put forward by the petitioner. 20. even going by the averments in the plaint and on the admitted facts, the petitioner is a person having interest adverse to that of the plaintiff. he is not entitled to act as the next friend of the plaintiff. he cannot be allowed to continue to prosecute the suit on behalf of the plaintiff, to the detriment of her interest. 21. i do not find any ground to interfere with the order passed by the court below. there is no jurisdictional error or error of law warranting interference either under section 115 of the code of civil procedure or under article 227 of the constitution of india. i do not think it is necessary to decide the question whether the revision is maintainable, since i have considered the contentions on the merits. for the aforesaid reasons, the civil revision petition is dismissed.
Judgment:

1. The questions of law involved in this Civil Revision Petition are the following:

1) What is the procedure to be followed when the plaintiff on whose behalf her next friend instituted the suit, comes forward and says that she is not of unsound mind or a person of feeble mind and that she does not want to continue to prosecute the suit?

2) Whether it is mandatory to remove the next friend before disposing of the suit on the application of the plaintiff on whose behalf the next friend instituted the suit?

3) Whether it is mandatory that after removal of the next friend the suit should be continued by the plaintiff?

4) Whether the next friend has any right to cross examine the plaintiff who gives sworn statement before Court in an enquiry under Rule 15 of Order XXXII that she is not mentally infirm or a person of unsound mind?

5) Whether the plaintiff in such a suit can approach the Court on her own and contend that she is not a person of unsound mind or a person of feeble mind and that she does not want to continue the suit, or is it necessary that an application should be filed on her behalf by some other person or the defendant?

2. The plaintiff in the suit (O.S.No.167 of 2008 on the file of the Court of the Subordinate Judge of Thiruvalla) is D.Bharathiyamma represented by her next friend A.Ramachadran Pillai. The defendants in the suit are the daughter of Bharathiyamma, the son of first defendant and the assignee of the property from Bharathiyamma.

3. The relief prayed for in the suit is for cancellation of the sale deed executed by Bharathiyamma in favour of the third defendant in the year 2008 in respect of the plaint schedule property having an extent of 28 Ares.

4. In the plaint, the next friend of the plaintiff stated thus:

"2. The plaintiff is enfeebled by old age and mentally infirm. On account of her mental infirmity she is incapable of understanding business and forming a rational judgement as to its effect on her. She does not have even the capacity to arrive at reasonable judgement as to the consequences of a contract and its effect on her interest and hence she is represented in this suit by her son as the next friend

....... .....

12. Thereafter he contacted the plaintiff and enquired how and why she executed the sale deed and she told her son that she was unduly influenced by the defendants 1 and 2 and that the sale deed happened to be executed virtually at their end. Since the sale deed has been apparently executed by the feeble minded plaintiff and under the undue influence of the defendants 1 and 2 the same is to be adjudged voidable and ordered it to be delivered up and cancelled on the following reasons:-

....... ......."

5. Bharathiyamma (the plaintiff) filed I.A.No.1175 of 2008 praying to conduct an enquiry under Rule 15 of Order XXXII of the Code of Civil Procedure, to take her evidence and any other evidence and to take the suit 'off the file'. In the affidavit accompanying the application, Bharathiyamma stated that she is not a person of unsound mind or a person of feeble mind. The suit was instituted by her son as next friend only to wreck vengeance against her. She was having disputes with her son for the last several years. The next friend has no right to institute the suit on behalf of the plaintiff. The plaintiff also stated that O.S.No.282 of 2003 filed by her before the Munsiff's Court, Thiruvalla against the next friend Ramachandran Pillai is pending in the transferee court. Ramachandran Pillai had instituted O.S.No.554 of 1998 on the file of the Munsiff's Court, Thiruvalla against Bharathiyamma and also defendants 1 and 2 in the present suit. That suit is also pending. The plaintiff also stated that Ramachandran Pillai had instituted O.S.No.77 of 1998 against her before the Munsiff's Court, Thiruvalla. That suit was dismissed. The Appeal and Second Appeal therefrom were also dismissed. O.S.No.77 of 1998 was a suit for specific performance of an alleged oral agreement for sale in respect of the property in question, filed by Ramachandran Pillai against Bharathiyamma. The plaintiff also stated that on 22.7.2008, Ramachandran Pillai had filed a Caveat before the same court against her and others. In the suits referred to above and in the Caveat, she is not described as a person of unsound mind or mental infirmity. The present suit was filed on 14.8.2008.

6. The court below recorded the statement of the plaintiff on oath. She stated before Court that since 1998 she is residing with her daughter. She stated before Court that she was the plaintiff in a suit before the Sub Court, Thiruvalla and she had a case before that Court earlier. The details of the case were stated in her evidence. She stated that she was residing with her son Ramachandran Pillai after the death of her husband and the behaviour of Ramachandran Pillai towards her was intolerable. She stated that an extent of 2.5 Acres of land was given to her son Ramachandran Pillai to ensure that she would be protected by him. But he did not do so. Therefore, she was constrained to leave her son and to live with her daughter. The plaintiff also stated that the plaint schedule property was sold by her to Shukur, the third defendant, on 15.7.2008 and she received consideration for the same. The plaintiff stated thus: She stated that she transferred the property to the third defendant out of her free will and volition. Ramachandran Pillai was not helping her and the suit was also not to help her. In categoric terms, the plaintiff stated in evidence before Court thus: All the relevant details regarding the property, the transfer of the same and the previous litigations in respect of the property were stated by the plaintiff in detail in her sworn statement made before Court.

7. The court below allowed I.A.No.1175 of 2008 and the suit itself was dismissed. The learned Subordinate Judge recorded that after examining the plaintiff, there was no reason to believe that the plaintiff is a mentally ill person. The learned Subordinate Judge observed that the plaintiff was having sound health, she was capable of understanding things and she gave voluntary statement before Court. The learned Subordinate Judge held that the plaintiff is mentally and physically perfect and sound. It was noticed in the order that Ramachandran Pillai did not care to give any evidence before Court. The order in I.A.No.1175 of 2008 is under challenge in the Civil Revision Petition filed by Ramachandran Pillai.

8. It is relevant to note here that in paragraph 5 of the plaint itself, the next friend stated thus:

"5. However, the next friend of the plaintiff continues to be in possession and enjoyment of the said 65 cents of land and he is taking the yield therefrom. While the plaintiff was planning to dispose of the said property the next friend of the plaintiff on coming to know of it expressed his willingness to purchase the said property and though a concluded contract was entered into between the plaintiff and the next friend on 15.11.96, the plaintiff under the undue influence of the 1st defendant refused to convey the said property which resulted in several suits."

9. It is also relevant to note that in the present Civil Revision Petition, Bharathiyamma is the first respondent and no application is filed by the petitioner to appoint a guardian for her. That means, in 2009, when the Revision was filed by the petitioner, he has no case that Bharathiyamma was having any mental infirmity or that she was of unsound mind.

10. The learned counsel for the petitioner submitted that though Ramachandran Pillai had filed a suit against his mother (plaintiff in the present suit), that suit had attained finality. The fact that the petitioner lost in the suit does not mean that he is not entitled to protect the interests of his mother, who, according to him, is having a feeble mind and that she is not having a disposing state of mind. The counsel also submitted that at no point of time the petitioner stated that his mother was of unsound mind. His only case was that she was only mentally infirm and she is a person of feeble mind having no disposing state of mind. The counsel contended that even if it is found that the plaintiff is not mentally infirm, the proper procedure would have been removal of the next friend under Rule 9 of Order XXXII of the Code of Civil Procedure and not to dismiss the suit. The counsel also submitted that the petitioner was not given an opportunity to cross examine the plaintiff. It is submitted that the affidavit in support of I.A.No.1175 of 2008 is in the handwriting of the counsel who appeared for defendants 1 and 2 and the affidavit was attested by a junior Advocate in the office of the counsel for defendants 1 and 2.

11. Learned counsel appearing for the respondents supported the order passed by the court below and contended that the Revision is not maintainable under Section 115 of the Code of Civil Procedure. It is submitted that no affidavit of a disinterested person was filed along with the plaint as provided under Rule 212 of the Civil Rules of Practice. The learned counsel appearing for the respondents also mentioned the details regarding the suit filed by the petitioner against his mother Bharathiyamma for specific performance of an alleged agreement for sale in respect of the same property involved in the present suit. The counsel submitted that the suit filed by Ramachandran Pillai against Bharathiyamma was dismissed by the trial court and the dismissal of the suit was confirmed in Appeal and in Second Appeal. All throughout that litigation, the petitioner had no case that his mother was a person of unsound mind or that she was mentally infirm or that she was a person having a feeble mind.

12. Order XXXII of the Code of Civil Procedure provides for suits by or against minors and persons of unsound mind. Rule 15 of Order XXXII of the Code of Civil Procedure states that "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". Every suit by a minor or by a person who is of unsound mind or by a person who is incapable, by reason of any mental infirmity, of protecting his interest when suing, shall be filed by a next friend. Where a suit is instituted in such a case without a next friend, the defendant may apply to have the plaint taken off the file, as provided in Rule 2 of Order XXXII of the Code of Civil Procedure. Rule 4 of Order XXXII CPC provides as to who may act as the next friend or be appointed as the guardian in the suit. The proviso to sub rule (1) of Rule 4 mandates that the interest of the next friend or guardian is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant in the suit, or, in the case of a guardian, a plaintiff.

13. Sub-rule (1) of Rule 9 of Order XXXII CPC reads as follows:

"9. Removal of next friend.-- (1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely that the minor's interest will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit, ceases to reside within India, or for any other sufficient cause, application may be made on behalf of the minor or by a defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit."

Rule 9 provides for an application to be made on behalf of the plaintiff or by a defendant for the removal of the next friend. But, that does not mean only some other person on behalf of the plaintiff or the defendant can make a prayer for taking the suit off the file. The plaintiff himself may appear before Court and establish that he is not a minor or a person who comes under Rule 15 of Order XXXII CPC, and that he does not want to prosecute the suit. Order XXXII does not prevent such a course being adopted by the plaintiff who claims that he is not a person of unsound mind or feeble mind or mentally infirm person or a person who is not capable of protecting his own interest.

14. The learned counsel for the petitioner relied on the decision in Syed Hassan v. Chirutha (1987 (2) KLT 242), wherein it was held that it is a pre-requisite that the Court should of its own motion conduct an enquiry in accordance with the provisions of Rule 15 of Order XXXII of the Code of Civil Procedure before accepting the plaint filed in the name of an idiot by his next friend. The learned counsel submitted that in the present suit that stage is over and the plaint was taken on file. Thereafter, the Court cannot decide the question whether the next friend filed the suit following all the parameters of Order XXXII. I do not find anything in the decision in 1987 (2) KLT 242 to suggest that the Court does not have jurisdiction to make an enquiry under Rule 15 of Order XXXII CPC, after summons was issued to the defendant. A defendant may put forward a contention that the next friend is not entitled to institute the suit on behalf of the plaintiff, either because the plaintiff is not a person of unsound mind or feeble mind or a person who is not capable of protecting his interest or on the ground that the next friend is having interest adverse to that of the plaintiff. Such an enquiry is not barred after the issue of summons to the defendant. In fact, Rule 9 of Order XXXII CPC provides for removal of the next friend at the instance of a person on behalf of the plaintiff or by the defendant on the ground that the interest of the next friend is adverse to that of the plaintiff. When such an application is filed, an enquiry is to be made as provided in Rule 15 of Order XXXII CPC. I am not inclined to accept the contention raised by the learned counsel for the petitioner in this regard.

15. In Rasheeda v. Nazeer (2011(3) KLT 218), it was held thus:

"4. Every suit instituted by a minor or by a person adjudged, before or during the pendency of the suit, to be of unsound mind or by a person who, though not so adjudged, is found by the court on enquiry to be incapable, by reason of any mental infirmity, of protecting his interest when suing or being sued, shall be instituted by a next friend on behalf of the plaintiff. Every person has a right to institute a suit if he has a cause of action for the same. If such a person is a minor or a person of unsound mind, a next friend can institute the suit on his behalf. A decision rendered in such suit shall be binding on the plaintiff. If the plaintiff is not a person adjudged to be of unsound mind, R.15 of O.XXXII of the Code of Civil Procedure provides that the court shall make an enquiry to ascertain whether the plaintiff is incapable, by reason of any mental infirmity, of protecting his interests. Allowing a next friend to institute a suit on behalf of a person on the ground that such person is of unsound mind or a person having mental infirmity, really affects the status of the plaintiff if really he is a person capable of suing. Grant of such permission by the Court would certainly affect his civil rights. An inbuilt safeguard is made in R.15 of O.XXXII to make an enquiry for the purpose of satisfaction of the Court as to whether the plaintiff is incapable of filing the suit by himself or whether a next friend should be allowed to institute the suit on his behalf. If it is found that the plaintiff has no mental infirmity or any other infirmity warranting permission to be granted for the next friend to sue on his behalf, necessarily, no permission can be granted to institute the suit by the next friend. Only on finding that the plaintiff is incapable to institute the suit as provided under law, the Court would allow the next friend to institute and to prosecute the suit. Such an enquiry is mandatory."

16. A Division Bench of this Court in Raveendran v. Sobhana (2008(1) KLT 488) held thus:

"10. The decision under O.32 R.15 involves very serious consequences as it results in the rights of a party to conduct his own litigation being taken away, and a guardianship being thrust upon him. In such circumstances, the court has not only the mandatory jurisdiction to enquire into the need for appointment of a next friend, but also the obligation to consider whether the person of unsound mind or of mental infirmity appearing before it is indeed capable of protecting his interests. If that person is not capable of protecting his interests on his own, the court has an obligation to protect his interests by appointing a next friend and if such person is capable of protecting his own interests, the court has equally an obligation to see that a next friend or guardian is not superimposed on him, thereby depriving him of his right to take his own decisions. In the decision reported in S.C.Karayalar v. V.Karayalar (1968 MLJ 150), it was held that holding of an enquiry under O.32 R.15.... "is thus inescapable and consent cannot vest jurisdiction in Court to dislodge or divest the right of a litigant to conduct his suit, by superimposing a guardian or a next friend.""

17. I am also not inclined to accept the contention raised by the learned counsel for the petitioner that without removal of the next friend, the Court has no jurisdiction to dispose of the suit accepting the plea of the plaintiff that she is not a person of unsound mind or a mentally infirm person. All that is required is that the Court should be satisfied that the plaintiff is either a minor or a person of unsound mind or a person who is not capable of protecting his interest and that it is required to allow the next friend to institute the suit on behalf of such person. If it is found by the Court that the interest of the next friend is adverse to that of the plaintiff and that the plaintiff does not want to continue to prosecute the suit, nothing prevents the Court from taking the suit off the file. It is not mandatory that the Court should first remove the next friend and then allow the prayer made by the plaintiff. It can be done simultaneously. I am also not inclined to accept the contention raised by the learned counsel for the petitioner that after removal of the next friend, it is mandatory that the suit should be continued by the plaintiff. If the Court finds that the plaintiff is not a person of unsound mind or having any other infirmity, it is for the plaintiff to decide whether he/she should continue to prosecute the suit or to withdraw the suit or to compromise the suit.

18. If the plaintiff, on whose behalf a next friend instituted the suit, appears before Court and proves to the satisfaction of the Court that he is not a person of unsound mind or a person having a feeble mind or that he is a person who is capable of protecting his own interest, the Court is bound to protect the interest of such plaintiff. When the law provides that the next friend should have no interest adverse to that of the plaintiff on whose behalf the next friend instituted the suit, it cannot be said that the next friend would have a right to cross examine the plaintiff. In an enquiry under Rule 15 of Order XXXII, the Court is not expected to decide the dispute between the plaintiff and the next friend. The enquiry is limited to the question whether the next friend should be allowed to institute the suit on behalf of the plaintiff on the ground that the plaintiff is not entitled to protect his interest or on the ground that the plaintiff is a minor.

19. Rule 212 of the Civil Rules of Practice, Kerala reads thus:

"212. Plaint or original petition on behalf of a minor.-- When a plaint or original petition is presented by a person as the next friend of a plaintiff or petitioner, who is a minor or under disability, he shall also file an affidavit by a disinterested person that the next friend has no interest, direct or indirect, in the subject matter of the suit or matter adverse to that of the plaintiff or petitioner, that he is not a defendant or respondent in the suit or matter, and that he is a fit and proper person to act as next friend."The stipulation that an affidavit of a disinterested person should be filed is only to protect the interest of the plaintiff and to ensure that the next friend has no interest, direct or indirect, in the subject matter of the suit. No such affidavit was filed in the present case. That itself is a sufficient ground to reject the contention put forward by the petitioner.

20. Even going by the averments in the plaint and on the admitted facts, the petitioner is a person having interest adverse to that of the plaintiff. He is not entitled to act as the next friend of the plaintiff. He cannot be allowed to continue to prosecute the suit on behalf of the plaintiff, to the detriment of her interest.

21. I do not find any ground to interfere with the order passed by the court below. There is no jurisdictional error or error of law warranting interference either under Section 115 of the Code of Civil Procedure or under Article 227 of the Constitution of India. I do not think it is necessary to decide the question whether the Revision is maintainable, since I have considered the contentions on the merits.

For the aforesaid reasons, the Civil Revision Petition is dismissed.