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High CourtsSingle Bench(2011) 12 SHI CK 0202

Nainu Ram vs Brij Lal and others

High Court Of Himachal Pradesh · Decided on 1 December 2011

HON’BLE JUDGES
Surjit Singh, J
CASE NUMBER
CMPMO No.336 of 2011

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Judgment

5 paragraphs · 356 words

Surjit Singh, Judge

1.

Petitioner has filed a suit against the respondents in the Court of Civil Judge. On 7th October, 2009, a son of the petitioner, namely Kamal Dev, filed an application, seeking his appointment as the next friend of the plaintiff-petitioner, on the ground that the petitioner, owing to very old age (82 years), has become mentally infirm, because of which he is unable to pursue the matter. That application was entertained and after hearing the parties and holding enquiry it was allowed. Petitioner''s next friend, i.e. his son Kamal Dev, sought to lead evidence on behalf of the petitioner, but his request was turned down, on the ground that the evidence of the plaintiff-petitioner stood already closed, vide order dated 7th October, 2009. Petitioner is aggrieved by this order, which has been incorporated in the same order dated 2nd August, 2011, by which the application, permitting the son of the petitioner to act as his next friend, has been allowed.

2.

I have heard Learned Counsel for the parties and gone through the record.

3.

It is submitted on behalf of the petitioner that when the order of closing the evidence of the petitioner (plaintiff in the suit) had been passed, the petitioner was mentally sick. The said order was passed on 7th October, 2009 and the application for appointment of petitioner''s son as his next friend was also moved on that date. That application having been allowed, vide order dated 2nd August, 2011, which means that the plaintiff was sick on the date of making the application and, hence, the order of that date, closing the evidence of the petitioner, is void, as the petitioner was unable to pursue the matter due to mental sickness. I find merit in the submission. Hence, the present petition is allowed and it is ordered that the petitioner, now acting through his next friend Kamal Dev, shall be afforded due opportunity for leading evidence, in support of the suit, instituted by the petitioner.

Petition stands disposed of. Pending application also stands disposed of. Parties are directed to appear before the trial Court on 4th January, 2012.