Madhya Pradesh High Court
Kranti Kumar Jain vs Dr. Mahendra Kumar Jain on 4 January, 2017
WP-2810-2016
(KRANTI KUMAR JAIN Vs DR. MAHENDRA KUMAR JAIN)
04-01-2017
Shri N.K. Gupta, Senior Advocate, assisted by Shri Sanjay
Sharma, Advocate for petitioner.
Shri Santosh Agrawal, Advocate for respondents.
Petitioner/plaintiff has approached this Court challenging the
order of the trial court dated 10/3/2016 in civil suit No.2A/2013. The
trial court has rejected the application filed under Order XXXII Rule
15 CPC.
Facts relevant and necessary for disposal of this petition in
nutshell are that plaintiff and defendants are the real brothers. Plaintiff has filed a suit for partition on 8/3/2011. During pendency of the suit, plaintiff suffered paralytic attack, as a result he was physically incapacitated to further prosecute the suit, therefore, he filed an application under Order XXXII Rule 15 CPC seeking leave of the Court for appointment of next friend proposing the name of his wife. Alongwith the application plaintiff had also submitted the medical prescriptions related to the treatment for paralysis suffered by him, wherein it is evident that the plaintiff is not able to stand, walk and speak. The trial court has rejected the application only for the reason that there is no medical certificate showing the percentage of body affected by the paralytic attack and, therefore, according to the trial court, it is not a fit case for appointment of next friend.
Shri Gupta, learned senior counsel, taking exception to the order impugned contends that the trial court in fact has refused to exercise the jurisdiction as provided for under Order XXXII Rule 15 CPC inasmuch as the aforesaid application ought to have been considered by the trial court by giving due credence to the medical prescriptions placed on record, whereunder name of plaintiff was mentioned and the fact of paralytic attack suffered by the plaintiff was well explicit. That apart, the suit being for partition, the fact of plaintiff having suffered paralytic attack is well known to defendants and there was no denial thereto by defendants and the relief claimed is for appointment of wife as a next friend, as such no prejudice was likely to be caused to defendants on such appointment being made. It is submitted that the justification for rejection of application in fact is not in right earnest in view of the aforesaid facts and circumstances.
Per contra, Shri Agrawal, learned counsel for respondents, supports the order impugned with the contention that for want of certificate of extent of paralysis, the trial court was justified having rejected the application. Moreover, Order XXXII Rule 15 CPC, as a matter of fact, has no application as it only relates to persons of unsound mind. Therefore, no interference is warranted under Article 227 of the Constitution of India.
Heard.
In the opinion of this Court, looking to the relationship between the parties and the nature of suit pending consideration and that the fact of sufferance from paralysis since having not been disputed, the trial court in all fairness ought to have given due credence to the medical prescriptions for ascertainment of fact of paralysis. Moreover, appointment of wife as a next friend in no way could be said to have caused any prejudice to the defendants. The provision is engrafted in the Code of Civil Procedure only to help facilitate the persons who are otherwise not mentally firm to protect their own interest and refusal for appointment of next friend in fact has defeated the very purpose of the provision. Therefore, the impugned order cannot be sustained. As regards the argument advanced to the effect that the provisions of Order XXXII Rule 15 CPC are only for the persons of unsound mind, suffice it to say that the submission is more of despairation than of substance, hence, does not warrant consideration. Accordingly, the writ petition is allowed. The order impugned dated 10/3/2016 to the extent of rejecting application under Order XXXII Rule 15 CPC is hereby set aside. The trial court is directed to appoint the wife of the petitioner/plaintiff Smt. Pushpalata Jain as his next friend to further prosecute the suit.
(ROHIT ARYA) JUDGE Arun*