Kerala High Court: The Bench of A. Hariprasad, J. hearing an appeal against remand order, answered substantial questions of law in relation to suits instituted by a next friend.

Respondent, purportedly on behalf of his alleged mentally infirm sister Rohini, filed a suit for declaration that a registered document executed by her was null and void. Trial court conducted an enquiry in respect of Rohini’s mental condition under Order XXXII Rule 15 of the Code of Civil Procedure, 1908 and rejected the plaint finding that Rohini was not mentally unstable. Respondent preferred an appeal in District Court against the said order of rejection. Pending appeal, Rohini expired. District Court, without conducting any enquiry under Order XXXII Rule 15 of the Code, found rejection of plaint as improper and remanded the case to trial court. Aggrieved thereby, the instant appeal was filed.

The Court observed that as per Order XXXII Rule 12, if the alleged mentally infirm person, after due enquiry is found by the court to be of sound mind, then the court is obliged to ascertain whether he elects to proceed with the suit or to get it dismissed. It was noted that the said duty was not performed by trial court and thus rejection of suit was highly improper. In such a situation, neither Section 104 nor Order XLII of the CPC permits an appeal.

Even if the rejection of plaint was regarded as bad in law, the trial court did follow procedure under Order XXXII Rule 15 of the Code. Hence, the only question that could have been decided by the District Court was the legality and propriety of enquiry conducted by the trial court. It was legally incompetent for the District Court to remand a non-est appeal.

In view of the above, the appeal was allowed and remand order was set aside. [C.V. Premakumari v. C.V. Pavithran, 2018 SCC OnLine Ker 5472, decided on 07-12-2018]

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