S H B THANGAL Vs. K T CHIRUTHA

JUDGEMENT

(1.) The appellants are defendants 7 and 9 to 11 in a suit for partition. The suit was instituted in the name of a person described as an idiot by her sister claiming to be next friend. The appellants contended that the person described as an idiot was not an idiot, but only a dumb person. Both the courts proceeded on the assumption that the appellants did not specifically dispute the claim of the next friend that the suit was being instituted in the name of a person who was an idiot, and so allowed the next friend to act as such. The suit was decreed by both the courts.

(2.) Shri. P. N. K. Achen, appearing for the appellants, submits that the plaint should not have been accepted and numbered by the Trial Court except after satisfying itself as to the claim of the next friend in accordance with the provisions of O.32 R.15 of the Code of Civil Procedure, 1908. Secondly Shri. Achen points out that the specific issue on the point ought to have been raised and tried even if the court bad satisfied itself by means of an enquiry as to the claim of the next friend. This is because the defendants bad questioned the claim of the next friend to institute the suit under O.32.

(3.) The principle of law embodied in O.32 R.15 has been elaborately discussed by a Division Bench of the Bombay High Court in Smooth v. Tirana, AIR 1973 Bom. 276 as well as by this Court in Balakrishnan v. Kalliyani, AIR 1957 Ker. 51 . It is unnecessary now to discuss at length the ambit of the provisions except to say that it is a pre-requisite of a suit sought to be filed by next friend that the court should of its own motion conduct an enquiry in accordance with the provisions of O.32 R.15 of the Code of Civil Procedure before accepting the plaint filed in the name of the idiot by next friend. It is only upon due satisfaction of the court as contemplated by these provisions of the Code of Civil Procedure that the court shall accept the plaint and issue notice to the defendants. Thereupon it is open to the defendants, if they wish, to challenge the plaint allegations regarding insanity, and, in that event, the court would raise an issue specifically on the point and have it tried. In the present case the court did not, in the first place, conduct an enquiry as contemplated under O.32 R.15 of the Code of Civil Procedure. Secondly, despite the specific plea of the appellants that the alleged idiot was not an idiot, but only a dumb person, an issue was not raised by the court. An issue ought to have been raised, tried and found.