Ahammed Kunju Saidu Pillai vs Subaida Beevi Rafeeka Beevi

U.L. Bhat, J.—Respondent herein filed a plaint in the court below against the revision petitioner herein on 21-12-1984. Plaint shows her age as 19 years. Defendant filed I. A. 3024/1985 under Order XXXII Rule 2 of the CPC (for short ''the Code'') praying that the suit may be taken off the file. Application was opposed by the plaintiff. Plaintiff filed I. A. 3068/1985 seeking appointment of a next friend for her. Learned Munsiff allowed the plaintiff''s application and dismissed the defendant''s application. Dismissal of the defendant''s application is challenged in this revision. It is not submitted that the order passed in the plaintiff''s application has been challenged in revision. So far as the present plaintiff is concerned, there is no dispute that she attains majority only on the completion of 18 years. When she filed the plaint, she gave her age as 19 years. Accordingly, the plaint was filed without intervention of a next friend and without showing any person as next friend. In the defendant''s application he stated that plaintiff was born on 4-5-1967. Plaintiff''s mother, who later filed an affidavit as a next friend, admitted the correction of the date of birth furnished by the defendant. Plaint was filed on 21-12-1984. That being so, plaintiff was aged only 17 years, 7 months and seventeen days on the date of the plaint and hence a minor. Plaintiffs sought to correct the defect by introducing her mother as next friend. According to learned counsel for the revision petitioner, a suit instituted by a minor in this manner is a nullity and the defect is incurable.

Order XXXII of the Code deals with suits by or against minors and persons of unsound mind. Rule 1 states that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Rule 2 reads thus:

(1) 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.

(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any), may make such order in the manner as it thinks fit.

Rule 2A of Order XXXII of the Code enables the Court to require the next friend to furnish security for payment of costs likely to be incurred by the defendant. Procedure to be followed where the defendant is a minor is laid down in Rule 3. The Court has to appoint a proper person to be guardian for the suit for such minor on the application on behalf of the minor or by the plaintiff supported by an affidavit with necessary details. Rule 12 states that when a minor plaintiff attaint majority, he may elect to proceed with the suit or the application. Under Rule 14 he may apply to have the suit dismissed on the ground that it is unreasonable or improper. These Rules apply to persons of unsound mind by virtue of Rule 15.

A minor, in law is disabled from binding himself except where it is for his benefit A minor who is a party to a suit is considered to be under the Protection of the Court and hence it is the duty of the Court to watch his interests vigilantly and to see that he is represented by a fit and proper person, provisions of Order XXXII are designed to protect the interests of minor and to see that they are properly represented in the proceedings before Court. Provisions deal only with procedure and not substantive law. Because of the disability of a minor, his interests should be looked after or watched by a mature person or an adult. Minor''s interests are not harmed if a suit filed by him ends in his favour. But if the suit ends against him and he is asked to pay costs or is subjected to some other liability, there will be legal difficulty for the defendant to work out his remedy against the minor plaintiff. Therefore, it is necessary that the defendant also must be protected. Requirement of the rule that a suit by a minor shall be instituted in his name by a next, friend of the minor is designed to protect the interests of the Plaintiff as well as those of the defendant. This design is reflected in. the various rules found in Order XXXII of the Code.

Law. as a general principle, treats acts of a minor which are for his benefit on the same footing as acts of an adult. Only those acts of a minor which are against his interests are not permitted by law. At page 105 of Daniell''s Chancerv Practice. 6th Edn., it is stated "absence a an infant''s supposed want of discretion and his inability to bind himself: and make himself liable for costs" is mentioned as the reason why no proceeding can be taken by an infant without assistance of a next friend. It is certainly open to the defendant to bring the minority of the plaintiff and his lack of representation to the notice of the Court. Rule 1 of Order XXXII enables the defendant to have the plaint taken off the file. It is open to the defendant to waive his objection, in which case he cannot raise the objection later on. Rule 2 does not state that in all such cases the plaint must be taken off the file. When an application is submitted by the defendant to have the plaint taken off the file on account of the fact that the suit is instituted by a minor without a next friend, the Court has a duty to hear all the parties concerned and pass an order "as it thinks fit." The Rule confers a wide discretion on the Court in the matter. It is open to the Court to direct the plaint to he taken off the file. At the same time, it is open to the Court to ensure that the next friend is appointed and to allow the suit to be continued. In these circumstances, it cannot be said that a suit instituted by a minor without intervention of a next friend is a nullity, and the defect cannot be rectified. It is a curable irregularity, curability depending upon the facts and circumstances of the case. Where on account of an error or a bona fide mistake such an irregular suit it instituted, there is no reason why the irregularity cannot be cured by providing for a suitable person as the next friend.

l am supported in this view by decisions of various courts. A Division Bench of the Lahore High Court in AIR 1924 188 (Lahore) held that the practice should be to suspend the proceedings and to allow sufficient time to enable the minor to have himself properly represented in the suit by a next friend This is so whore there is no ground to believe that the minor instituted the suit with intention to deceive the defendant or the Court. A Division Bench of the Rajasathan High Court in Bachh Raj Vs. Sunder Mal and Others, noticed that the Court has two alternative courses of action, one of taking the plaint off the file and the other of rectifying the error and allowing the plaintiff to continue the suit. This Court in Akku Amma and others v. Kunhi Raman and others ( 1963 K.L.J. 397) took the view that institution of a suit by an insane person without a next friend is an irregularity. The Calcutta High Court in Keshav Deo Tulshan Vs. Jagadish Prasad Tulshan, held that (he defect is curable and where there is no suppression of truth or deception of mala fide motive, the proceeding should be allowed to be corrected. Same view was taken by the Madras High Court in Kamalammal v. A. M Shanmughant ( AIR 1976 Mad. 235) and by the Delhi High Court in B.K. Khanna Vs. K.N. Khanna and Others, . On the date of the plaint, plaintiff had not completed 18 years of age; she was a few months younger. The affidavit of her mother shows that she is an illiterate lady who did not know the correct date of birth of the plaintiff. There can be no doubt that the plaint was filed in the manner in which it was filed, as a result of bona fide mistake or error and even ignorance. It was not a case of deliberate suppression or deception; there could not be any improper motive. Therefore, the Court below was justified in exercising its discretion in allowing the next friend to be brought on record and in rejecting the defendant''s request to have the plaint off the file. I find no ground to interfere.

Revision petition is dismissed.