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KANEEZA KHATOON versus NANDU & OTHERS

High Court of Judicature at Allahabad

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Kaneeza Khatoon v. Nandu & Others - WRIT - A No. 10537 of 2001 [2006] RD-AH 16126 (15 September 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J

Heard counsel for the parties.

Since the factual and legal controversy raised in both the writ petition are similar, they are being decided by this common judgment by treating Civil Misc. Writ no. 3019 of 2001 as leading case.

Briefly stated, the facts of the case are that the petitioner moved an application dated 2.5.1998 to the effect that on the original plaint her signatures were left out and she may be permitted to sign on the plaint. Application of the petitioner was rejected vide order dated 6.3.1999 passed by Civil Judge, (J.D) Mau- respondent no. 3.

Aggrieved by the order dated 6.3.1999, aforesaid, the petitioner preferred a revision which too has been dismissed vide impugned order dated 15.5.2000 passed by District Judge, Mau.

Counsel for the petitioner vehemently urged that the impugned orders rejecting application of the petitioner are illegal as it is settled law that irregularities, if any, may be removed by the concerned party.  He urged that such kind of orders results in further litigations.

A perusal of impugned orders shows that the suit was filed by the husband of the petitioner.  The Courts below have found from the application of the petitioner that her husband was of unsound mind from about 4 to 5 years prior to the institution of the suit. It is settled law that suit by a person of unsound mind is not maintainable. If the suit itself is not maintainable having been filed by a person of unsound mind, the petitioner, after death of her husband cannot be permitted to sign on the plaint of the suit which was filed by her husband.  If she has any cause of action, she may file fresh suit as directed by the Courts below but cannot be permitted to sign on the plaint which was filed by her late husband who was incapable to file suit.  It is wholly incorrect to say that filing of fresh suit, as directed by the Courts below, would result in multiplicity of proceedings. Suffice it to say that in the instant case, the petitioner not only filed Revision No. 34 of 1999 before respondent no. 2 against the order of Civil Judge (J.D) dated 6.3.1999 passed in suit no. 13 of 1995 but has also filed the instant petition challenging the validity and correctness of the order dated 15.5.2000 passed by Additional District Judge, Mau in aforesaid revision giving rise to multiplicity of proceedings.  The petitioner could have very well filed a fresh suit and taken the opportunity granted by the Courts below instead of wasting about seven and a half years in unfruitful litigations.

It appears that the petitioner was not advised well by the counsel.

No illegality or infirmity could be pointed out in the impugned orders calling for interference in the writ jurisdiction.

For the reasons stated above, the writ petition is dismissed. The judgment in this petition shall govern the connected writ petition also. No order as to costs.

Dated 15.9.2006

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Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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