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Judgment
J.R. Vora, J.—Heard Mr. D.C. Dave, learned Advocate for the petitioner.
This Revision Application is filed against the order passed by the learned Small Causes Judge, Ahmedabad in H.R.P. Suit No. 1993 of 1993 on
29th day of November, 2002 below an application Exh. 74 filed by the present petitioner, i.e. original defendants of the said Civil Suit under Order
32, Rules 2 and 15 of the Code of Civil Procedure.
As per the brief facts one Nitaben Somabhai Patel, plaintiff No. 1 and Vishnubhai Somabhai Patel, plaintiff No. 2, both jointly filed the
abovesaid rent suit against the present petitioner for the arrears of rent as well as for eviction. In the abovesaid suit, at the stage of recording of
evidence, an application Exh. 74 was preferred by the present petitioner stating that as a Power of Attorney holder of Nitaben, plaintiff No. 2
Vishnubhai has maintained the abovesaid suit and entered in the witness box. Right from the filing the suit, defendants have declared that plaintiff
No. 1 is of unsound mind and therefore, plaintiff No. 1, Nitaben cannot maintain the suit and plaintiff No, 2, Vishnubhai, in capacity of Power of
Attorney holder of plaintiff No. 1 also cannot maintain the suit. It was, therefore, in the said application, prayed that as per Order 32, Rules 2 and
15 of the CPC the suit was not maintainable and suit required to be dismissed.
The learned Judge came to the conclusion that so far as the Power of Attorney given by the plaintiff No. 1 to plaintiff No. 2, is concerned, the
same may not be considered to be giving authority to plaintiff No. 2 but the learned Judge observed that plaintiff No. 2 had filed his reply at Exh.
75 in which he has stated that the plaintiff No. 2 was the brother of the plaintiff No. 1, as well as the next friend. He also stated that he was
administering all the properties of plaintiff No. 1. It was also stated in the affidavit-in-reply that plaintiff No. 2 was collecting rent from the
defendant as well as from other tenants and hence after negativing the contention of the present petitioner, the application Exh. 74 came to be
dismissed by the learned Judge. Being aggrieved by that order this Revision Application.
Learned Advocate for the petitioner, Mr. D.C. Dave referred to Rule 2 of Order 32 of CPC and submitted that as per the admission of
plaintiffs, plaintiff No. 1 Nitaben is of unsound mind and hence, plaintiff No. 1 can neither file suit nor maintain the same. It was submitted that the
suit is not instituted by guardian or the next friend of Nitaben, plaintiff No. 1, who was the owner of the premises in question. It was submitted that
the suit is not filed in capacity of a next friend of plaintiff No. 1, who was of unsound mind. The institution of the suit, itself, according to the learned
Advocate was wrong. It was submitted that in these circumstances plaintiff No. 2 cannot continue to maintain the suit. It was submitted that even
after this clear provisions of law and admission of plaintiffs on record, the learned trial Judge erred in coming to the conclusion that the plaintiff No.
2 was next friend of plaintiff No. 1. It was submitted that as per Order 32 Rule 2 of CPC the suit ought to have been taken off the file by the
learned trial Judge and the application ought to have been allowed.
Having heard the learned advocate for the petitioner and having gone through the record carefully, it clearly transpires that application at Exh. 74
is filed by the present petitioner under misconception of law. In fact, there is no provision in CPC authorising the Court to exercise powers to
dismiss the suit, when it is filed by a person of unsound mind. Provisions of CPC makes it clear that how to deal with the suit filed by or against
minors or persons of unsound mind. Rule 1 of Order 32 makes provision that minor or person of unsound mind can institute a suit in his name
through a person, who in such suit shall be called the next friend of the minor or a person of unsound mind, as the case may be. Rule 2 is applicable
to the facts of the present case, which is as under :
Rule 2. Where suit is instituted without next friend, plaint to be taken off the file :-
(1) Where a suit is instituted by or on behalf of a minor without a next friend the defendant may apply to have the plaint taken off the file, with costs
to be paid by the pleader or other person by whom it was presented.
(2) Notice of such application shall be given to such person and the Court, after hearing his objection (if any), may make such order in the matter
as it thinks fit.
Thereafter, provisions are made under the said Order 32 by various rules. When suit is filed against a minor or a person of unsound mind the
scheme of this order, undoubtedly indicates that the Court is duty bound to take care of the interest of minor or person of unsound mind. By Rule
15, the provisions of Rules 1 to 14, except Rule 2A is made applicable to the persons of unsound mind because Rules 1 to 14 makes provisions
for suit filed by or suit filed against the minor, meaning thereby that the same provisions will be applicable in the case of person of unsound mind.
Rule 2 as stated above indicates the beneficial object to take care of a minor or a person of unsound mind, as the case may be, in such suit,
when the suit is filed without next friend by a minor or a person of unsound mind. Rule 2 suggests that the Court will exercise care to take the plaint
off the file. This provisions by no stretch of logic can be construed in a manner that minor or a person or unsound mind is to be non-suited. It is
clear from the provision that suit is not to be dismissed but plaint is to be taken off the file, when it is found by the Court that in pending suit that
plaintiff is a minor or a person of unsound mind. The object of the rule, which empowers the Court is even without any application by the defendant
to take the plaint off the file is to enable the Court to grant opportunity to minor or a person of unsound mind to cure irregularities. As soon as this
defect is cured and minor or a person of unsound mind is properly represented through next friend or guardian the suit must continue. The Court is
bound to take notice of the minority of or unsound mind of the plaintiff, if the same is disclosed in the course of trial. Therefore, the course open to
the Court is to suspend all the proceedings in the suit, until the defect is remedied by the minor or a person of unsound mind getting himself
properly represented by a next friend. It is amply clear that the object of this rule is to enable the Court to regularise the irregularity of filing of suit
by minor or a person of unsound mind without next friend. But in no case, any provision of the CPC empowers the Court to non-suit such plaint,
as has been prayed by in application at Exh. 74 by the present petitioner. Construction of Rule 2, Sub-rule (2) makes it further clear that these
provisions, on the contrary empowers a Court to permit the suit instituted by or on behalf of the minor or a person of unsound mind to be
continued after taking steps to see that the next friend of the minor or a person of unsound mind is brought on record to conduct the suit. Even
misdescription in a title, which does not disclose that the suit is filed by a next friend of a person of unsound mind, is a formal defect and can be
cured, but the whole litigation cannot be thrown out on this count. Duty is cast upon the Court to direct to amend the cause title suitably in view of
Rule 2, Sub-rule (2) of Order 32 of Code of Civil Procedure. The prime object of incorporating these provisions is to see that the interest of a
minor or a person of unsound mind must not suffer and they may be properly represented in a suit filed by them or against them. It is enough if the
provision of Rule 1 is substantially complied with. Therefore, the phraseology employed in Sub-rule (2) of Rule 2 that ""may make such order in the
matter as it thinks fit"" gives wide powers to the Court to make such order as the Court might think fit, after hearing the objections raised by the
parties concerned in the interest of minor or a person of unsound mind.
In this case, the only irregularity is in the cause title. It is not mentioned that the plaintiff No. 2 Vishnubhai has brought the suit against the
petitioner as a next friend of plaintiff No. 1, Nitaben, who is of unsound mind. The Court is not required in this case to go into and inquire about the
fact that whether plaintiff No. 1 is of unsound mind, because this is an admitted fact, in plaint itself. The law enjoins duty on the Court to make
appropriate order so as to protect the interest of a plaintiff or defendant of unsound mind or a minor. While going through the record, it becomes
amply clear that all throughout the suit, plaintiff No. 2, Vishnubhai, who is real brother of plaintiff No. 1, Nitaben has acted as a next friend of
plaintiff No. 1. In affidavit filed by him at Exh. 75, he has in express terms stated that he is the next friend of plaintiff No. 1, Nitaben. He has further
stated that he was administering all the properties of Nitaben, collecting rent from the defendants, as well as from the other tenants and was doing
all work, which was necessary to be done as a next friend. In this view of the matter, rejection of application Exh. 74 by the learned trial Judge
was perfectly legal but in the circumstances the trial Court ought to have directed to amend the cause title suitably showing that the plaintiff No. 1,
Nitaben has instituted suit through her next friend plaintiff No. 2, Vishnubhai and this defect as said above is an irregularity and curable. The trial
Court, therefore, shall take necessary steps.
In this view of the matter, this Revision Application stands summarily rejected. No order as to costs.