Similarly, in Raveendran v. Sobhana (2008 (1) KLT
488), a Bench of this court considered the question whether a
deaf and dumb person can be said to be a person suffering from
mental infirmity. It was held that “mental infirmity is not mental
disorder. It is not mental illness or unsoundness of mind or
insanity. It only indicates the weakness of intellect and in the
particular context of Order 32 Rule 15, weakness of intellect to
the extent of making a person incapable of protecting his
interest in the litigation. Thus a person who is not of unsound
mind may, yet be a person who is mentally infirm, thus entitling
him to the protection under Order 32 Rule 15. Idiocy or
unsoundness of mind indicates an abnormal state of mind,
whereas mental infirmity only indicates weakness of mental
strength. The scope of enquiry under Order 32 Rule 15 is the
assessment of the capability of a person either of unsound mind,
or suffering from any mental infirmity deafness or dumbness as
to whether such defects are infirmity or weaknesses would
render a person incapable of communicating his views, wishes or
thoughts. Thus, the legal position is that mental infirmity in the
context of Order 32 Rule 15 is not mental disorder, insanity or
mental illness. Weakness of mind due to any reason, making a
person incapable of protecting his interests, is sufficient to unfold
the protective umbrella under Order 32 Rule 15. Such infirmity
can also be caused by physical defects like deafness or
dumbness, whereby a person is made incapable of
communicating his wishes, views or thoughts to others who are
not acquainted with him”.
21. Sri. Alias M. Cherian contended vehemently, that, the
enquiry contemplated under Order 32 Rule 15 was not carried
out by the trial court and the omission has vitiated the entire
proceedings before trial court and the impugned judgment as
well. According to him, failure of the trial court to adjudicate
upon the capability of the plaintiff to protect her interests has
resulted in a serious error in the procedure adopted. The counsel
referred us to several decisions of this Court, including
Rasheeda v. Nazeer (2011 (3) KLT 218), Balakrishnan v.
Kalliyani (1957 KLT 268), Cleetus v. South Indian Bank (2007
(3) KLT 868) and canvassed that it is obligatory on the part of the
court to conduct a judicial enquiry as to the capacity of the
plaintiff, especially since grant of such a permission to the next
friend to institute a suit would certainly affect the civil rights of
the plaintiff.
22. Even though the aforesaid submissions were impressive
on first blush, on going through the records we find that factually
there is a difference in this case on a few material circumstances.
These material differences persuade us to first appreciate on the
happenings in the court below, instead of applying the decisions
relied on by Adv.Sri.Alias M.Cherian. Records reveal that a
separate application was filed by the next friend, who is none
other than plaintiff’s own daughter, as I.A. No. 995 of 2011, on
the date of filing of the suit itself, seeking permission to institute
the suit, through a next friend. The said application was allowed
after taking a composite statement for appointment of a next
friend as well as for permission to sue as an indigent person. The said order was never challenged by the defendants. Accepting
that I.A. No.995 of 2011 was allowed at the numbering stage,
when the defendants were yet to appear, still, the need for
appointment of a trained interpreter for helping the plaintiff to
give evidence as PW1, that too in the presence of the 1st
defendant, was felt and understood by the court and the same
was also not objected to by the defendants. Further, at the time
of trial, the plaintiff while being examined as PW1 deposed
through the interpreter, that, she has instituted the suit and also
produced Ext.A3 to prove that she is deaf and dumb and there
was no cross-examination even on that aspect. Plaintiff’s
ratification before the court during her deposition, regarding the
filing of the suit, renders all technical objections relating to the
defects of appointment of a next friend and of the next friend’s
eligibility to institute the suit, otiose. In such circumstances, we
reject the arguments of the appellant against the appointment of
a next friend and hold that the appointment of a next friend in
the facts and circumstances of the case was proper.IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
MR.JUSTICE S.V.BHATTI
&
MR. JUSTICE BECHU KURIAN THOMAS
R.F.A (INDIGENT) No.306 OF 2019
MARY Vs LEELAMMA
Dated this the 30th day of June, 2020
Bechu Kurian Thomas , J.
