Whether Person Facing Sexual Harassment Enquiry Can Be Represented By Lawyer Or Next Friend Before ICC

Petitioner seeks to be represented in the said enquiry proceedings by a person of legal background. In this regard, he is aggrieved by an e-mail communication dated 23rd September 2022 received from ICC wherein his request to engage an advocate was declined on account of an express bar to legal representation under Rule 7(6) of Rules. {Para 5}

18. Nevertheless, in the opinion of the court, once the Petitioner gave up the challenge to the provision, he cannot be permitted to seek an alternate prayer in the nature of relief (iv) above in absence of any enabling provision under the Act or Rules which entitles the Petitioner to be represented, as the bar under Rule 7(6) would certainly apply.

19. If the Court would allow such an interpretation, then this provision would become redundant, and a floodgate of law graduates, who may not be enrolled with the bar councils to become an ‘advocate’ but are still practicing law, would pour in. The purpose of keeping the proceedings fact-based and free expert legal advisory, would be lost. That apart, there is also merit in the observation that this will create a prejudice for the complainant, whose case is also being considered by the internal committee without the aid of the legal practitioner or next friend.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) 14547/2022

JOHNEY REBERIO Vs  UNION OF INDIA & ORS

CORAM:

HON'BLE MR. JUSTICE SANJEEV NARULA

Date of Decision: 14th October, 2022

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Can the court appoint the next friend if the person is suffering from mental infirmity due to physical defects?

In Raveendran Vs. Sobana AIR 2008 Ker 145= MANU/KE/0754/2007, Kerala High Court had an occasion

to deal with the issue whether a deaf and dumb person can be said to be a person suffering from mental infirmity and as one entitled to protection of Order XXXII Rule 15 of CPC, is the question to be considered. It held mental infirmity is not mental disorder. It is not mental illness or the particular context of Order XXXII Rule 15 of CPC, weakness of intellect to the extent of making a person incapable of protecting his interests 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 XXXII Rule 15 of CPC. Idiocy or unsoundness of mind indicates an abnormal state of mind, whereas, mental infirmity only indicates weakness of mental strength. The proviso applies to dull-witted persons or persons

with lesser degree of intellectual competence. A person who is not

adjudged as one unsound mind under the Lunacy Act is still entitled to the protection under Order XXXII Rule 15 of CPC, if the Court is satisfied that the person before the Court is incapable of protecting his interests, either by reason of unsoundness of mind or intellectual incompetence due to mental infirmity. Mental infirmity may even be due to physical defects, if such defects render a person incapable of receiving any communication or communicating his wishes or thoughts to others. The scope of enquiry under Order XXXII Rule 15 of CPC is the assessment of the capability of a person either of unsound mind or suffering from any mental infirmity like deafness or dumbness, as to whether such defects or infirmities or weaknesses would render a person incapable of communicating his views, wishes or thoughts. {Para 20}

21. It is further held that the legal position is that mental infirmity in the context of Order XXXII Rule 15 of CPC is not mental person able of protecting his interests, is sufficient to unfold the protective umbrella under Order XXXII Rule 15 of CPC. 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. If such a person is before the Court in a suit or proceedings either as plaintiff or defendant, the Court has a jurisdictional

obligation to conduct an enquiry as to whether the person is capable of protecting his own interests. If in the judicial enquiry, if necessary and if required, conducted with the assistance of an expert, it is found that such person is incapable of protecting his interests in the suit or proceedings before the Court, the Court has an obligation to appoint a next friend for such person, and if the Court on the other hand finds that the person is otherwise capable of protecting his interests without a next friend, the

Court shall remove the next friend if already available and permit the person, who is alleged to be of unsound mind or suffering from mental infirmity, to conduct the litigation himself. It is also further held a decree passed against a minor without appointment of guardian is a nullity. The same principle would apply as far as a person suffering from unsoundness of mind or mental infirmity is referred to in Order XXXII Rule 15 is concerned.

22. In view of the above said authoritative principle of law, as

discussed supra, the Court below erred in holding that the petitioner herein has not filed medical reports. The Court below did not consider the specific pleading that the person who sought to be appointed as next friend specifically contended that he has no adverse interest to that of plaintiff.Therefore, according to this Court, the petitioner herein aged about 75 years, suffering with various old age ailments including paralysis and hearing problem supported by medical evidence, is entitled for appointment of next friend. Therefore, according to this Court, the Court below erroneously dismissed the application vide I.A.No.514 of 2019 filed by the petitioner vide impugned order dated 26.03.2021 and therefore, the impugned order is liable to be set aside and accordingly set aside.

 IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT: HYDERABAD

CORAM:

 THE HON’BLE SRI JUSTICE K. LAKSHMAN

 CIVIL REVISION PETITION No.1389 OF 2021

 

 M.Sudhakar @ M.Sudhakar Rao  Vs. Peerajee @ Reddy 

Delivered on: 17-11-2021

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Whether a deaf and dumb person can file suit through next friend?

 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.

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Whether muslim wife aged 15 years can file application for maintenance U/S 125 of CRPC without next friend?

Section 2 of the Indian Majority Act, 1875 lays down that nothing contained therein shall affect the capacity of any person to act in matters of marriage, dower, divorce, and adoption. Clause (b) of this section excepts the religion or religious rights and usages also of any class of citizens of India from the provisions of that Act. So, the provisions of Section 3 of that Act that every person domiciled in India shall be deemed to have attained his majority by having completed the age of 18 years and not before, has no application to this case. That the provisions of the Indian Majority Act, 1875, do not apply to matters relating to marriage, dower and divorce amongst Mohammadan's and that a Mohammadan wife, who has attained publicity, may file a suit for divorce without a next friend, even after she is under 18 years of age has been well recognised and can also be seen from page 283 of Mulla's Principles of Mohammadan Law Eighteenth Edition. Section 251 of the said principles dealing with capacity for marriage, would show that every Mohammadan of sound mind, who has attained puberty, may enter into a contract of marriage, while it can be seen from the Explanation to that section that puberty is presumed in the absence of evidence, on completion of the age of fifteen years. So, if a Mohammadan woman could validly contract a marriage on attainment of 15 years, I fail to understand how she could be barred from maintaining an action under Section 125, Cr. P. C. unless she is represented by a guardian more so, when there is no such disabling provision either in that section or anywhere else in the Code. If the Legislature intended that a wife, who is under 18 years of age, should not be permitted to start proceedings under Section 125 Cr. P. C. for maintenance against her husband, it would have certainly made the necessary provision therefore in that section itself, as in the case of certain other proceedings covered by the Code. Reference may be made to Sections 198 and 199 of the Code to illustrate the same-S. 198, dealing with prosecution for offences against marriage, lays down that where the aggrieved person happens to be under the age of 18 years, or is an idiot or a lunatic or is from sickness or infirmity unable to make a complaint, or is a woman who according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf. There is a similar provision in Section 199 dealing with prosecutions for defamation. When it is thus seen that the legislature has taken care to provide for representation of certain categories of persons by others in proceedings under Sections 198 and 199 of the Cr. P. C, it would have done the same thing even in the case of applications under Section 125, Cr. P. C. But the conspicuous absence of any such embargo on a wife, who is below the age of 18 years, against applying for relief under Section 125, Cr. P. C. is in my opinion, sufficient to reject the contention urged for the petitioner that the respondent is not competent to apply for maintenance under Section 125, Cr. P. C. unless she is represented by a guardian, for the simple reason that she was only 15 years old at the date of her application.

IN THE HIGH COURT OF ANDHRA PRADESH

Decided On: 04.04.1979

Gulam Mustafa Vs. Tahara Begum and Ors.

Hon'ble Judges/Coram:

Y. Venkateswara Rao, J.

Citation: 1980 CRLJ 124 AP

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Whether it is mandatory for court to hold enquiry in petition for annulment of marriage if wife is suffering from mental illness?

After considering the various rulings cited before me and referred herein above, I have no doubt that both the Courts below erred in completely overlooking the provisions of Order 32 Rule 15 which are mandatory in nature. If those provisions are not followed and a decree is passed against a person having mental disorder, it would be nullity. It will not be proper not to interfere even when both Courts below have passed Judgments and orders which amount to nullity. Both the Courts below were bound to hold enquiry as contemplated under Order 32 Rule 15. When any plaint or petition is filed by a person either himself or through next friend, claiming himself to be a person suffering from mental infirmity or suit is filed by a person against a defendant or respondent, who is alleged to be suffering from mental infirmity, it is bounden duty of the Court to hold enquiry in this regard.

17. Giving opportunity of hearing should be meaningful and with a purpose. If a person is too poor to appoint a lawyer, unless legal aid is given to him, he cannot defend himself. Similarly, giving opportunity of hearing to a person suffering from mental illness, is giving him no opportunity unless he is given the assistance of a Guardian-at-litem, who can take care of this defence. It may be that a person may not appear to be mentally insane sometimes, If he is having lucid attacks at intervals. When he is not having such attacks, he may look perfectly normal, but whenever, he is having attack, he would be incapable of defending himself. Even in such cases, Order 32 Rule 15 must be strictly complied. Otherwise, a person looking normal, may contest the proceedings against him, but at any crucial moment, if he suffers from attack of mental disorder, he would not be in a position to take necessary steps to defend himself.

18. It was therefore, necessary for the trial Court to hold enquiry as contemplated under Order 32 Rule 15.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 284 of 2018 and Civil Application No. 5300 of 2018

Decided On: 21.11.2018

Seema Ambadas Khedkar  Vs. Ambadas Jagannath Khedkar

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(3) MHLJ 384

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Whether it is necessary to obtain permission of court for filing of suit by next friend on behalf of minor?

A bare reading of Order XXXII, Rule 1 of the Code makes it amply clear 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. The next friend need not necessarily be a duly appointed guardian as specified Under Sub-section (b) of Section 4 of Hindu Guardianship Act. "Next friend" acts for the benefit of the "minor" or other person who is unable to look after his or her own interests or manage his or her own law suit (person not sui juris) without being a regularly appointed guardian as per Hindu Guardianship Act. He acts as an officer of the Court, especially appearing to look after the interests of a minor or a disabled person whom he represents in a particular matter. The afore-said provision authorises filing of the suit on behalf of the minor by a next friend. If a suit by minor is instituted without the next friend, the plaint would be taken off the file as per Rule 2 of Order XXXII of the Code. Order XXXII Rules 1 and 3 of the Code together make a distinction between a next friend and a guardian ad litem; i.e., (a) where the suit is filed on behalf of a minor and (b) where the suit is filed against a minor. In case, where the suit is filed on behalf of the minor, no permission or leave of the Court is necessary for the next friend to institute the suit, whereas if the suit is filed against a minor, it is obligatory for the Plaintiff to get the appropriate guardian ad litem appointed by the Court for such minor.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 22969 of 2017

Decided On: 08.01.2018

Nagaiah  Vs.  Chowdamma (dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Arun Mishra and Mohan M. Shantanagoudar, JJ.

Citation: 2018(5) MHLJ 1

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Whether defendant can be permitted to examine doctor to ascertain mental condition of plaintiff at the stage of final argument ?

 In view of the own admission of the plaintiff/petitioner No. 2 in the plaint that she had instituted the suit for cancellation of sale deed in the year 2012 being next friend of plaintiff No. 1 as noted above, this Court is of the view that no further enquiry was required to be made by the Court under Order XXXII, Rule 1 to 15 of the Code of Civil Procedure. The scope of enquiry under the provisions of Order XXXII, Rule 1 to 15 is limited for the purpose of appointment of next friend to represent a plaintiff. Plaintiff No. 1 is properly represented by his wife. As per the plaint averments, plaintiff No. 2 (wife) is capable of protecting the interest of the plaintiff No. 1 (her husband) and her interest in the subject-matter of suit cannot be said to be adverse to that of the plaintiff No. 1.

17. In view of the above discussion, the argument of learned Counsel for the petitioner that the enquiry required to be made under Order XXXII, Rule 15 (Rule 1 to 15) of the Code of Civil Procedure has not been done by the Court, below, is wholly misconceived.

 In the instant case, the Appellate Court has considered the prayer of the appellant to adduce additional oral evidence of Doctor at the stage of final argument in appeal and has opined that the documentary evidences filed by the appellant during the course of hearing in the appeal had already been taken on record vide order dated 6.7.2017. In view of the available evidence taken on record, there was no further requirement of additional oral evidence of Doctor.

25. Further, an enquiry has already been made by the First Appellate Court regarding the mental condition of Sri Vinod Kumar (plaintiff No. 1) who was present before it on 6.7.2017. The exercise of discretion by the First Appellate Court at the stage of final disposal of the appeal in holding that no further evidence was required, cannot be said to be an improper exercise of judicial discretion.

IN THE HIGH COURT OF ALLAHABAD

Civil Misc. Petition No. 4468 of 2017 and Matters Under Article 227 No. 3194 of 2017

Decided On: 28.07.2017

Vinod Kumar  Vs. Tarachand

Hon'ble Judges/Coram:

Sunita Agarwal, J.

Citation: AIR 2018(NOC) 703 ALL

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Basic concepts of CPC 4 -definitions

Commission

Commission refers to an authority which is appointed to exercise a power or direction issued by court,when for instance a witness is unable to attend court on account of his illness or other similar reasons, the court can order such a witness to be examined on commission.

Under S 75 of CPC, commission can be issued by court for several purposes, as for instance to examine witnesses, to make a local investigation, to adjust accounts, to make a partition and so on.

Letter of request/Rogatory letter

A letter of request or rogatory letter is a letter issued by a court of one country to a court in a foreign country requesting for some judicial assistance from Judiciary of that country. Such assistance may be in the form of request to serve a summons or to take evidence of specified person.

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Whether person who is not appointed by court as guardian can work as next friend of minor child?

A bare reading of Order XXXII, Rule 1 of the Code makes it amply clear 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. The next friend need not necessarily be a duly appointed guardian as specified Under Sub-section (b) of Section 4 of Hindu Guardianship Act. "Next friend" acts for the benefit of the "minor" or other person who is unable to look after his or her own interests or manage his or her own law suit (person not sui juris) without being a regularly appointed guardian as per Hindu Guardianship Act. He acts as an officer of the Court, especially appearing to look after the interests of a minor or a disabled person whom he represents in a particular matter. The afore-said provision authorises filing of the suit on behalf of the minor by a next friend. If a suit by minor is instituted without the next friend, the plaint would be taken off the file as per Rule 2 of Order XXXII of the Code. Order XXXII Rules 1 and 3 of the Code together make a distinction between a next friend and a guardian ad litem; i.e., (a) where the suit is filed on behalf of a minor and (b) where the suit is filed against a minor. In case, where the suit is filed on behalf of the minor, no permission or leave of the Court is necessary for the next friend to institute the suit, whereas if the suit is filed against a minor, it is obligatory for the Plaintiff to get the appropriate guardian ad litem appointed by the Court for such minor. A "guardian ad litem" is a special guardian appointed by a court in which a particular litigation is pending to represent a minor/infant, etc. in that particular litigation and the status of guardian ad litem exists in that specific litigation in which appointment occurs. Various High Courts have also adopted this view. The Madras High Court in Kaliammal, minor by Guardian, Patta Goundan v. Ramaswamy Goundan MANU/TN/0124/1948 : AIR 1949 Mad. 859 observed that there is no need of sanction of the Court for a next friend to sue, if he is not incapacitated. This was also the view taken by the High Court of Allahabad in K. Kumar v. Onkar Nath MANU/UP/0019/1972 : AIR 1972 All. 81.

 To sum up, instituting a suit on behalf of minor by a next friend or to represent a minor Defendant in the suit by a guardian ad litem is a time-tested procedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between a "next friend" and a "guardian ad litem" is that the next friend is a person who represents a minor who commences a lawsuit; guardian ad litem is a person appointed by the Court to represent a minor who has been a Defendant in the suit. Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian ad litem is appointed by Court and whereas the next friend is not. The next friend and the guardian ad litem possess similar powers and responsibilities. Both are subject to control by the Court and may be removed by the Court if the best interest of the minor so requires.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 22969 of 2017

Decided On: 08.01.2018

Nagaiah and Ors. Vs.  Chowdamma (dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Arun Mishra and Mohan M. Shantanagoudar, JJ.

Citation: (2018) 2 SCC 504,2018(5) MHLJ 1

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Whether exparte decree passed against minor can be set aside if he was represented by guardian?

The benefit of Sec. 6, in the normal circumstances, will apply only for filing of a suit or for the purpose of filing an application for execution. It cannot be extended to an application to set aside an ex parte decree when the minor is represented by the guardian. Even, in the case on hand, the applications are filed by the 1st respondent on behalf of the 2nd respondent, the minor. Order XXXII Rule 3A of the Code of Civil Procedure which was inserted by the 1976th amendment reads as under:

"3-A. Decree against minor not to be set aside unless prejudice has been caused to his interests.-(1) No decree passed against minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be ground for setting aside the decree.

(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interest of the minor."

15. The above provision clearly indicates that a decree passed against the minor shall not be set aside merely on the reason that next friend or guardian for the suit of minor had an interest in the subject matter of the suit adverse to that of the minor. It is further to be proved that such adverse interest has caused prejudice to the interest of the minor.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

OP (FC) No. 540 of 2016 (R)

Decided On: 31.03.2017

Abdul Salam Vs. Chalil Sajitha and Ors.

Hon'ble Judges/Coram:

A.M. Shaffique and K. Ramakrishnan, JJ.

Citation: AIR 2017 Kerala 151

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Procedure to be followed by court for appointing guardian to lunatic in civil suilt

Civil - unsoundness of mind - Order 32 Rule 15 of Code of Civil Procedure, 1908 - to declare a person lunatic only evidence of medical expert be upheld - Order of Judge dismissing petition for appointment of next friend set aside - Judge failed to examine plaintiff under Order 32 Rule 15 of Code - Order passed is illegal - opinion of doctor held to be opinion of expert under Section 45 of Evidence Act - petition remanded to Court below.

 From these decisions, the fallowing principals emerge :

(1) Order XXXII, Rule 15 C. P. C. places persons of unsound mind or persons so adjudged in the same position as minors for purposes of Rules. 1 to 14.

(2) Order XXXII Rule 15 C. P. C. applies not only to a person adjudged to be of unsound mind, as under the old Code, but also to a person of weak mind.

(3) Where it is alleged that a party to a suit is of unsound mind, and the other party denies it, the Court must hold a Judicial inquiry, and come to a definite conclusion, as to whether by reason of the unsoundness of mind or mental infirmity, he is incapable of protecting his interests in the suit.

(4) Mental infirmity may even be due to physical defects, if it renders him incapable of receiving any communication, or of communicating his wishes or thoughts to others.

(5) Whether a person is of unsound mind or mentally infirm for the purpose of the rule and the extent of the infirmity has to be found by the Court on inquiry.

(6) Where the question of unsoundness of mind arises not only under Order XXXII, Rule 15 C. P. C. but is also one of the issues in the suit, the Court has amole jurisdiction to enquire into that question, and for that purpose seek medical opinion.

(7) The enquiry should consist not only of the examination of the witnesses produced by either party, but also of the examination of the alleged lunatic by the judge, either in open court or chambers, and as Courts are generally presided over by lay-men, as a matter of precaution, the evidence of medical expert should be taken.

(8) Of course, the opinion, of a doctor, as is the opinion of any other expert, under Section 45 of the Evidence Act, is only a relevant piece of evidence.

(9) The Court may also compel the attendance cf the alleged lunatic before it, and to submit himself for medical examination. If the alleged lunatic is in custody, the Court may direct the next friend or any other person having custody to produce him before the medical expert for examination.

(10) Where the precaution of judicial enquiry is not observed, the person cannot be declared lunatic, and a guardian cannot be appointed for him.

(11) When a person is adjudged a lunatic Irregularity and improperly, and notice was not served on him, and a guardian alone was allowed to appear and defend the suit and decree was passed owing to the guardian not gutting up a proper defence, the alleged lunatic can treat the decree against him as an ex parte decree, and have it set aside under O. IX Rule 13 C. P. C.

Andhra High Court

Duvvuri Rami Reddi vs Duvvudu Papi Reddi And Ors. on 20 April, 1962

Equivalent citations: AIR 1963 AP 160

Bench: Venkatesam

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Procedure to be followed by court when suit is instituted by mentally ill or minor through next friend

In a suit of representative character under Order I
Rule 8 of the Code of Civil Procedure, one person may sue or defend
on behalf of all in the same interest with the permission of the Court.
This is why even in these cases, the plaint is accompanied by an

application praying for permission under Order 1 Rule 8 CPC. If Court
grants permission then and then only a suit in the representative
capacity becomes maintainable. Even under the provision of Order VII
Rule 1, the particulars to be contained in a plaint are laid down. In
Clause-(d) of the said rule it is provided that whether the plaintiff or
the defendant is a minor or a person of unsound mind, the statement
to that effect must be given in the plaint. This being a necessary
requirement, even a failure to comply with the same may result in
rejection of plaint under Order VII Rule 11 of the CPC. In the case in
hand, the plaintiff has been described to be a person of unsound
mind by one Nabenendu Bikash Deb. Said Nabendu Bikash Deb has
described himself to be a next kin of the plaintiff and in that capacity
presented the plaint and proceeded with the trial. Reverting to Rule
15 of Order XXXII it appears that it is the Court who is to adjudge a
party to be incapable by reason of any mental infirmity. So holding
someone incapable by mental infirmity is the task given to a Court
and it cannot be taken for granted by merely describing someone as
mentally unsound by a self proclaimed next kin. Rule 3 of the same
order indicates that in case where a defendant is a minor, the Court
shall not only specify status of minority of such defendant but also
Court shall also appoint a proper person to be the guardian ad litem.
This is because under Clause (3) of the said Rule, Court is also satisfy
itself as to whether a person is fit to be so appointed as guardian of
the minor defendant. If it is a case that a defendant is of unsound
mind, by operation of Rule 15, the Court would have been saddled
with two responsibilities, first to hold enquiry and to determine as to
whether the defendant is really a person of unsound mind and then
to make appointment of guardian ad litem on being satisfied that
such a person is fit to be so appointed. Qualification for being a close
friend of the plaintiff or of being appointed as guardian ad litem is
laid down in Rule 4 of the Order XXXII. This, interalia, requires that

such person does not have any interest adverse to the minor or the
person of unsound mind, as the case may be. The first part of Rule 4
relates to plaintiff and so Rule 15 has to be understood keeping in
view the provision of Rule 4 of the CPC. This means that once a plaint
is presented to a Court describing the plaintiff to be a person of
unsound mind and such plaint is presented by a person claiming to be
a next kin of the plaintiff, the Court is duty bound to ascertain as to
whether the plaintiff is really a person of unsound mind, and if so, to
say as to whether the person who has approached this Court claiming
to be a next friend of the plaintiff is qualified in terms of Rule 4 of
Order XXXII, to be next friend of such plaintiff. Once the provision of
Order XXXII is viewed from such angle there is no doubt that this
provision is not a merely procedural one but it has essential judicial
components also. Apart from using the word ‘shall’ in Order XXXII
Rule 15, the judicial exercise of the Court required by the provision
placed this rule at a higher pedestal then a procedural provision. This
Rule, therefore, is mandatory and failure to comply with the same
would make the plaint unentertainable and consequently the suit
would become not maintainable.

In the case in hand, Nabendu Bikash Deb is a self styled
next friend of the plaintiff who did not even urge the Court to make a
necessary adjudication as to the mental capability of the plaintiff
before proceeding to entitlement of the suit and the Court also
proceeded at the mere ipsi dixit of Nabendu Bikash Deb who has no
jural connection with the property. In that view of the matter the
learned lower appellate Court has not committed any error in holding
that the suit itself was defective and not maintainable for non-
compliance of the provision of Order XXXII Rule 15 CPC.

IN THE GAUHATI HIGH COURT

RSA 98/2003
 On the death of appellant No. 1, Sri Binoy Bhusan Choudhury,
Vs
Smti Rekha Rani Deb
  
BEFORE
HON’BLE Mr. JUSTICE N. CHAUDHURY

Date of delivery of Judgment :: 06.02.2014
Citation; AIR 2014 Gauhati 50

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