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Civil Miscellaneous Application in Suit No.38 of 1986, decided on 30th September, 1986.

‑‑‑ 0. XXXII, Rr. 2 & 3‑‑Suit on behalf of plaintiff of unsound mind, and against defendant of unsound mind‑‑Requirement‑‑Where plaintiff is of unsound mind, suit in his name is to be filed through next friend‑‑In cases where defendant is of unsound mind, Court has to appoint guardian‑ad‑litem for defending the suit‑‑Consequences for non‑compliance for filing suit by a person of unsound mind without a next friend would be that plaint could be taken off the file‑ Expression "taken off the file" was not synonymous to rejection of plaint or dismissal of suit‑‑Such expression would mean that proceedings would be stayed‑‑Where a plaintiff of unsound mind sues without a next friend and an objection is taken by defendant or such admissions are made in plaint, Court would be competent to stay the proceedings and require plaintiff to sue through a next friend and direct him to take necessary steps as provided under law.

A I R 1924 Lah. 188; A I R 1928 Cal. 537; A I R 1928 Mad. 558 and P L D 1982 Lah424 ref.

‑‑‑0. XXXIII, R. 2‑‑Suit filed by five plaintiffs‑‑One plaintiff stated to be person of unsound mind‑‑Effect‑‑Suit having been filed by more than one person, seeking the same relief, who are major and of sound mind, even if one plaintiff was found to be of unsound mind, neither the proceeding could be stayed nor plaint could be rejected.

‑‑‑S. 9‑‑Lunacy Act (IV of 1912), S. 62‑‑Suit by five plaintiffs‑‑One plaintiff stated to be a person of unsound mind‑‑Separate proceeding under S. 62 of Lunacy Act, 1912 already pending against such plaintiff wherein evidence of experts had already been recorded‑ ‑Question of unsoundness of plaintiff being already in issue in lunacy proceedings wherein evidence of experts had been recorded, it would be proper that unsoundness of such plaintiff should be determined after considering that evidence on rec6id.

‑‑‑ 0. XXXII, R. 2‑‑Application for rejection of plaint on plea of one plaintiff being a person of unsound mind‑‑Factum of unsoundness of mind of such person still subject to inquiry‑‑Where the claim made by the plaintiff objected to, and that made by other plaintiffs was not conflicting but was identical, law, held, would not require to seek any order for appointment of a next Friend‑ ‑Persons already on file as plaintiffs could act as next friend of such plaintiff if he was found to be a person of unsound mind‑‑ Application for rejection of plaint being devoid of merit was dismissed in circumstances.

Mst. Jamila Begum v. Awamunnas and 15 others P L D 1974 Lah. 1375 rel.

Rashid A. Akhund for Plaintif f s.

Syed Abdus Samad for Defendant.

The defendant No. 1 has filed this application under Order XXXII rule 2 C.P.C. praying that as on the face of the record filed by the plaintiffs, the plaintiff No. 1 was of unsound mind on 20‑1‑1986 when the suit was filed, the plaint may be taken off the file. In support of his contention, the plaintiff has referred to Annexure IGI to the plaint which is a statement of Abdul Rashid an employee of the Plaintiff No.1 who has stated that plaintiff No.1 is seriously sick being 95 years old and has lost comprehension and memory as a result of the disease of brain cell. In paragraph 17 of the plaint it has been stated that "In the month of March/April, 1985, the plaintiff developed complications of Urinary Tract disease and high fever. He became bed‑ridden and immobile and very frail. His condition worsened, when he was attacked by the malady of "temporary dementia" On the basis of these two averments the defendant No. 1 has pleaded that admittedly the plaintiff No.1 is not a man of sound mind, and, therefore, suit filed on his behalf without any next friend is not valid and the plaint should be taken off the file. It is further contended that the attorney of plaintiff No.1 has no valid authority to file the suit as the power of attorney was executed by the plaintiff. No.1 when he was of unsound mind it may be clarified that the provisions of Order XXXII, relating to minors are applicable to persons of unsound mind as provided by Order XXXII, Rule 1, C.P.C. Where a plaintiff is of an unsound mind law requires that suit should be filed in his name through his next friend but in cases where a defendant is of unsound mind the Court has to appoint guardian‑ad‑litem for defending the suit. The consequences for non‑compliance for filing suit by a person of unsound mind without a next friend is mentioned in Order XXXII, Rule 2, C.P.C. which provides that the plaint is to be taken off the file. This expression is not synonymous to rejection of the plaint of dismissal of the suit, It has been interpreted to mean that the proceedings shall be stayed. In certain authorities view has been taken that the plaint should be rejected. But the consensus is that the procedure provided under law is to facilitate the administration of justice and, therefore, in such cases defaulting party may not be penalised. Where any plaintiff of unsound mind sues without a next friend and an objection is taken by the defendant or such admissions are made in the plaint, the Court will be competent to stay the proceedings and require the plaintiff to sue through a next friend and direct him to take necessary, steps as provided under law. Reference can be made to A I R 1924 Lah. 188; A I R 1928 Cal. 537; A I R 1928 Mad. 558 and P L D 1982 Lah. 424. Where no next friend is available the Court can order some one to act as his next friend.

In the present suit there are five plaintiffs including plaintiff No. 1 about whom it is alleged that he is of unsound mind. The dispute relates to a property of which the plaintiff No.1 and his brother were the owner. The plaintiff No.1 had gifted away the disputed property to the defendant No.l. Now by this suit the plaintiffs have challenged the gift alleging that it was merely a benami transaction in the name of the defendant No.1 and the plaintiff No.1 is the real owner of the property. The plaintiffs seek declaration to this effect and have prayed for cancellation of the gift and further that the defendant No.1 who is the grandson of the plaintiff No.1 whose father has died is not the legal heir of the plaintiff No.l. Plaintiffs Nos. 2 to 5 who are the daughters of the plaintiff No.1 have joined him in seeking such declaration and further that they be declared as legal heirs in respect of the property in dispute. Therefore, the suit has not been filed only by the plaintiff No.1 but there are four (persons seeking the same relief, who are major and about whom no allegation has been made that they are of unsound mind. In these circumstances, even if the plaintiff No.1 is found to be of unsound mind, neither the proceedings can be stayed nor the plaint can be rejected as contended by the defendant No.l. The question of insanity of the plaintiff No.1 is an issue raised by the defendants. It is pertinent to note that the defendant No.1 filed Suit No.504185 against the plaintiff and other alleging that the plaintiffs Nos.2 to 5 and others are surruptitiously conspiring to get hold of all the properties owned by the plaintiff No.1 by arranging to get them gifted or transferred or relinquished by him to themselves while "he (the plaintiff No. 1) himself is lying incapacitated helpless and unaware of all the going on". But in this suit the defendant No.1 did not file an application under Order XXXII rule 3 for appointment of a guardian‑ad‑litem of the plaintiff No.1 (defendant No.14 in that suit).

However, later an application was made for examination of the plaintiff No.1 through doctors and psychiatrists. An application under section 62 of Act IV of 1912 was also filed for ascertaining the state of mind of the defendant No.14 (plaintiff No.1 in the present suit). In that suit three doctors have examined the plaintiff No.1 and have also submitted their reports. They have also been examined and cross‑examined by the advocates for the parties. From these facts it is clear that the question of unsoundness of mind of the plaintiff No.1 is an issue in which several experts have been examiend and it would be proper that the unsoundness should be determined only after considering these evidence on record.

The learned counsel for the defendant No.1 has relied on Mst. Jamila Begum v. Awamunnas and 15 others P L D 1974 Lah. 1375. This was an appeal against an order passed by the trial Court, dismissing an application of the appellant under the Lunacy Act for the purposes of ascertaining whether the brother of the appellant was of unsound mind, and was incapable of managing his affairs and making proper arrangements for the management of the suit property. The learned counsel has referred to paragraph 12 of this judgment in which principles for determining such question have been stated, but at this stage, it is not relevant because presently application under Order XXXII rule 2, C.P.C. is under consideration and in the facts and circumstances stated above it would not be proper to make such inquiry and give any finding at this stage particularly as an application under section 62 of the Lunacy Act as stated above is pending and evidence of the parties have been recorded.

Suffice to say, there are 5 plaintiffs who have joined in the suit and in case the plaintiff No.1 is found of unsound mind (which is subject to inquiry and an issue in the suit filed by the defendant) the plaintiffs Nos. 2 to 5 would act as next friend to proceed and prosecute the suit, as the claim made by the, plaintiff No.1 and the other plaintiffs are not conflicting and are identical. In this regard reference can be made to the observation made in P L D 1962 Kar 424. The law does not require to seek any order for appointment oil a next friend. Any person can join as next friend of the plaintiff, who is of unsound mind or is a minor. I do not find any force in these applications which are dismissed.

A.A. /E‑5/K Application dismissed.

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