Decided on October 20,1972

SOMNATH Appellant


- (1.) THIS is plaintiff's appeal. Plaintiff is described in the plaint as a major person aged 35 but of unsound mind, or a person incapable of taking care of his own affairs and, therefore, sued through the next friend, his wife. For the purpose of this appeal, it is not necessary to refer to the contents of the plaint. Suffice it to note that there appears to be a decree ultimately passed by the High Court in First Appeal No. 479 of 1961 decided on 25-7-69 arising out of Special Suit No. 108 of 1958 in the Court of the Civil Judge (s. D.) Poona, in favour of the defendant. Defendant is executing that decree in Special Darkhast No. 90 of 1968 and the suit by the next friend on behalf of the plaintiff, who is described as a person of unsound mind is for a declaration that the plaintiff has a right to remain in possession of the suit property and that that defendant is not entitled to execute the decree for specific performance obtained by him in the litigation mentioned above.
(2.) WHILE opposing the suit on the merits, the defendant in his written statement also alleged that it was not true that the plaintiff was a person incapable of taking care of his own affairs. He, therefore, challenged the presentation of the plaint as improper. He also filed an independent application, Exh. 29, containing the same allegation, viz. , that the plaint was not properly presented and it should be struck off the file.
(3.) THE learned Civil Judge (S. D.) Poona, framed two preliminary issues and disposed of the suit on those issues. The first issues was whether the plaint has been properly presented by the plaintiff and the second was, what order.;

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