MEHARUNNISA Vs. KAMRUNNISA

JUDGEMENT

(1.) Being aggrieved by the order dated 4.3.2011 allowing the application filed by the plaintiff under Order 32 Rule 4 of CPC declaring Ku. Rukhsar Begum, daughter of the plaintiff Smt. Kamrunnisa as next friend and rejecting the application of the defendant under Order 32 Rule 15 of the CPC, this petition has been preferred by the defendant under Article 227 of the Constitution of India.

(2.) On perusal of the order impugned, it reveals that while allowing the application under Order 32 Rule 4 of CPC, trial Court observed that Ms. Rukhsar Begum is the daughter of plaintiff Smt. Kamrunnisa being the nearest relative and the natural guardian. She is major and of sound mind and good health. Her interest cannot be said to be adverse to the plaintiff, therefore, Ms. Rukhsar Begum be treated the next friend of plaintiff Kamrunnisa and granted permission to sue on her behalf. The application under Order 32 Rule 15 of CPC of defendant has been rejected on the ground that as per the report of the Medical Board, Kamrunnisa is found to be 55% of unsoundness of mind and the denfendant made an attempt to grab the property of the plaintiff. It is observed that due to granting permission to Ms. Rukhsar Begum to sue on behalf of plaintiff as next friend, the prayer made by the defendant/petitioner, is hereby rejected.

(3.) Shri Ashok Lalwani, learned counsel for the petitioner has strenuously urged that alongwith the suit, an application for appointment of next friend ought to be filed which has not been filed by Ms. Rukhsar Begum, therefore, institution of the suit must be taken off the file allowing the objection filed by the defendant. In addition it is said, when the objection has been raised by the defendant to appoint Ms. Rukhsar Begum as next friend alleging that the plaintiff Kamrunnisa is not of unsound mind, an enquiry must be conducted as contemplated under Order 32 Rule 15 CPC, however, trial Court committed an error to reject such application without any reason or rhyme. Therefore, the order appointing next friend may be set aside allowing the application filed by the defendant/petitioner. In support of the said contention, reliance has been placed on the judgment of Andhra Pradesh High Court in the case of Duvvuri Papi Reddi and others vs. Duvvuri Rami Reddi, 1969 AIR(AP) 362.