[Order XXXII Rule 15 CPC] Persons With Physical Infirmities Seriously Affecting Cognitive Functions Can File Suit Through 'A Next Friend': Kerala HC [Read Judgment]

The Kerala High Court has held that persons having physical infirmities like deafness or dumbness which seriously affect their cognitive functions can file a suit through next friend invoking Order 32 Rule 15 of the Code of Civil Procedure.

In this case, a suit filed by one Leelamma, a deaf and dumb person, through her daughter, was decreed by the Trial Court. The suit was filed seeking to set aside a partition and release deeds which deprived her from rights in property. In the appeal filed by her elder sister before the High Court, one of the contentions raised was that the appointment of a next friend in the circumstances of the case was clearly illegal in as much as plaintiff was neither of unsound mind, nor had any infirmity of mind entitling her to be represented by a next friend.

While addressing this contention, the bench comprising of Justice SV Bhatti and Justice Bechu Kurian Thomas, referred to Order 32 Rule 15 CPC and noted that it deals also with persons of mental infirmity, who are, by the said reason, incapable of protecting their interests, except with the assistance of a next friend, when suing or being sued. It said:

"We have no doubt that, the word 'mental infirmity' has been used in Order 32 Rule 15 C.P.C., to convey a meaning, which is wider and which would encompass something more than what the word 'unsoundness of mind' would cover..The term 'mental infirmity' has not been defined in the C.P.C, 1908. In the context in which the term is used in Order 32 Rule 15 C.P.C., it is capable of taking a meaning different from that of unsoundness of mind."

The bench observed that when the infirmity of hearing is to such an extent that no one, other than those closely associated with that person or an interpreter alone is able to communicate and reach that person's mind, then, that infirmity could be regarded as a mental infirmity for the purpose of Order 32 Rule 15 of the C.P.C. It observed thus in the judgment:

Cognitive skills are used to comprehend, process, remember, and apply incoming information to create an external reaction. The cognitive skills are the core skills a person's brain uses to think, read, learn, remember, reason, and even pay attention. The cognitive functions enable us to orient ourselves in the world, making us aware of the various dangers and rewards, assimilate the main sources of pleasure and pain, and are also the means by which we receive information from others. An infirmity in the cognitive faculty which impairs the skills of perception, discernment, comprehension and thought, will necessarily have an impact on the mind. A hearing impaired person becomes dumb on account of the impairment of his skills of perception, discernment, comprehension thought and response. Living as a deaf and dumb person, has a debilitating effect on the mental faculties of comprehension, thought, communication and even response. These faculties when affected will have an effect on the person's capacity to protect his civil rights. In the matter of communicating his views about his civil rights, a deaf and dumb person will be weak. If the impairment of hearing is to such an extent that it is almost difficult to communicate with that person, or even comprehend any reply given by him, except by understanding the signs by which one communicates with him, then there arises a weakness of the mind. This weakness, akin to an infirmity, makes it almost impossible for any person, other than those intimately acquainted with that person or a trained interpreter, either to reach his mind or to interpret it. When the infirmity of hearing is to such an extent that no one, other than those closely associated with that person or an interpreter alone is able to communicate and reach that person's mind, then, that infirmity could be regarded as a mental infirmity for the purpose of Order 32 Rule 15 of the C.P.C. Such a person though not mentally unsound, is, for the purpose of Order 32 Rule 15 of the Code of Civil Procedure, 1908, a person who is mentally infirm."

The bench particularly referred an earlier judgment of the Kerala HC in Raveendran v. Sobhana (2008 (1) KLT 488), in which it was held that mental infirmity in the context of Order 32 Rule 15 is not mental disorder, insanity or mental illness. It was observed therein that the weakness of mind due to any reason, making a person incapable of protecting his interests, is sufficient to unfold the protective umbrella under Order 32 Rule 15 and that such infirmity can also be caused by physical defects like deafness or dumbness, whereby a person is made incapable of communicating his wishes, views or thoughts to others who are not acquainted with him.

In facts of the case, the bench concurred with the Trial Court findings that the deeds executed as against the plaintiff through undue influence and fraud and the same is null and void as against the plaintiff and therefore the subject property is liable to be partitioned.

Case name: Mary vs. Leelamma
Case no.: R.F.A (INDIGENT) No.306 OF 2019
Coram: Justice SV Bhatti and Justice Bechu Kurian Thomas
Counsel: Advocate Alias M. Cherian

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