Nirmal Kumar & Another vs Rani Devi & Others

Sudhanshu Dhulia, J

The petitioners have invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

The present writ petition arises out of the orders passed in the civil proceedings.

The petitioners are the defendants in a suit being O.S.No.14 of 2013, which has been instituted on behalf of a mentally challenged person. Admittedly, the suit was instituted on behalf of his next friend who is none other but by his elder brother. Although, the petitioners have taken an objection in their written statement that the suit has wrongly been instituted on behalf of his next friend since the plaintiff was not mentally challenged. Whether the plaintiff was mentally challenged or not and whether the suit was liable to be instituted on behalf of his next friend was not framed as an issue by the court below on 13.10.2015. The trial proceeded on the issues framed.

Meanwhile, the next friend i.e. the elder brother of the plaintiff passed away on 05.05.2017. When the matter came up before the court below, the wife of his next friend i.e. Bhabhi (sister-in-law) of the plaintiff moved an application under Order 32 Rule 10 of the Civil Procedure Code praying that she be appointed as next friend of the plaintiff.

It appears that certain objections were raised on this application by none other but by the present petitioners i.e. the defendants stating that the plaintiff is not mentally challenged person and that they had stated in their written statement, and therefore, this issue must be decided first. The court below had passed an order on 27.08.2018 ordering that this issue whether the plaintiff is mentally challenged person or not and whether the suit will be decided first. The order dated 27.08.2018 passed by the trial court was challenged by the petitioners in civil revision no.38 of 2018, which has also been dismissed by the Revisional Court vide order dated 30.11.2019. Aggrieved the petitioners have filed the present writ petition before this Court.

A totally wrong recourse has been taken by the court below.

Admittedly the suit was instituted under Order 32 Rule 1 of the Civil Procedure Code on behalf of a person of an unsound mind and when the issues were framed, the objections of the defendants were taken into consideration and yet no issue was framed on the mental capacity of the plaintiff. Defendant did not file any revision against "improper framing of issues".

These objections now at a much later stage should not have been considered at all by the Trial Court when the matter come before it for passing an order on the application under Order 32 Rule 10 of the Civil Procedure Code. Such application must be decided first before the suit even proceeds any further.

An interference at this stage by way of an interim relief will unnecessarily bring the proceedings of the court below to a halt. Already a delay has been caused in the matter as the suit was filed way back in the year 2013. The writ petition is consequently allowed. The orders dated 27.08.2018 passed by Civil Judge (S.D.) Vikas Nagar in O.S. No.14 of 2013 and the order dated 30.11.2019 passed by Additional District Judge, Vikas Nagar in Civil Revision No.38 of 2018 are hereby set aside.

Let the Trial Court consider the application in accordance with law and thereafter proceed with the matter.

Registrar General of this Court is also directed to inform the trial court as well about this order.

Let a certified copy of this order be supplied within twenty-four hours on payment of usual charges.