G.C. Jain, J.

1. Om Prakash Sharma was appointed as an Inspector (Rationing) under the Delhi Administration on April 30, 1956. His services were terminated on September 28, 1966 under Rule 5 of the Central Civil Services (Temporary Service) Rules. He filed a suit (S. No. 286/77) for declaration that the order of termination was illegal and for recovery of Rs. 74,965 as arrears of pay and allowances. The suit was listed for his evidence on January 15, 1979. The appellant was present in person but refused to proceed with the matter on the ground that he had gone in appeal to the Supreme Court against the judgment of the Division Bench in F.A.O. (OS) 27/78 and that this Court has no jurisdiction to decide the matter which was to be decided by the Supreme Court. He was called upon to produce the evidence but he refused to do so. The learned single Judge consequently directed that the suit be treated as dismissed without prejudice to the result of the suit in case he succeeded in the Supreme Court.

2. The appellant, thereafter, filed an application (I. A. 1563/81/dated April 30, 19*81 under Order 32 Rule 5(2) and Section 151 of the Code of Civil Procedure seeking discharge of the said order dated January 15, 1979 on the ground that he was of unsound mind and suffering from insanity since 1968 till the date of the application. In the later part of the application, however, he stated that now he was able to protect his interests in the litigation. This application was dismissed by a learned single Judge of this Court by his order dated October 23, 1981. It was for two reasons, namely, (1) that on applicants own showing he was of unsound mind on the date of the filing of the suit and therefore the suit had not been properly instituted, and (2) that it was impossible at that stage to make an enquiry as to the state of unsoundness of mind and the degree of the soundness of mind which the appellant had at the time of instituting the suit and during the course of hearing of the suit.

3. Feeling aggrieved the appellant has filed this appeal.

Order 32 Rule 5(2) provides:

(2) Every order made in a suit or on any application, before the Court in or by which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged........

By virtue of the provisions contained in Order 32, Rule 15 these provisions would apply to persons adjudged before or during the pendency of the suit to be of unsound mind. The order dated January 15, 1979 could therefore be discharged if it was found that appellant at the relevant time was of unsound mind.

4. The learned single Judge refused to make an enquiry as to the un-soundness of mind of the appellant because he thought it was impossible to determine this fact. We cannot accept this view. The question whether the appellant was of unsound mind at the relevant time can be determined on evidence. Often the question of unsoundness of mind is determined after several years. This was therefore no ground for refusing to interfere with the order.

5. The learned single Judge was also of the opinion that the suit was not properly instituted as the appellant was admittedly of unsound mind at the time of the filing of the suit. Under Rule 1 of Order 32 read with Rule 15 every suit by a man of unsound mind shall be instituted in his name by a person who in such suit shall be called his next friend. No. doubt the word shall has been used in Rule 1 but the fact remains that this Rule was enacted for the protection and benefit of defendants and when a defendant waives this benefit and protection the suit may proceed without next friend. Provisions contained in Rule 2 make it clear. Rule 2 provides:

Where a suit is instituted by or on behalf of a minor without a next friend the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.

6. From these provisions it is clear that the non-representation of a minor or a man of unsound mind by a next friend is only an irregularity capable of being waived by the defendant. The suit by a minor or a man of unsound mind cannot be dismissed only on the ground that it had not been filed by a next friend. If an objection is taken then it is the duty of the Court to give an opportunity to the plaintiff to constitute the suit in the regular manner. Therefore, the appellants application could not be dismissed on this ground as well.

7. In conclusion we accept the appeal and set aside the impugned order. The matter would go now before the learned single Judge who will decide the question of unsoundness of mind of the appellant at the relevant time after affording the parties reasonable opportunity to lead evidence on this plea and decide the application in accordance with law. Parties are left to bear their own costs.