Ajit Singh and another vs Dharmender Singh and others

J.V. Gupta, J.—The Defendant appellents have fI d(sic) this appeal against the order of the Additional District Judge, Narnaul, dated January, 30, 1979, whereby the accepted the appeal and set aside the order of the trial Court dismissing the suit and remanded the case for decision on merits.

Dharmender Singh and Dhanender Singh minor sons of Mehtab Singh filed the present suit for possession by pro-emption of the suit land through Smt. Nawaldevi (their mother) next friend on July 24, 1974. The suit was filed against Ajit Singh and five others. It was alleged in the plaint that Devi Singh and others as the owners in possession of the suit land sold the same to Ajit Singh and Sarjit Singh Defendant Appellants for a sum of Rs. 25,000/- while Rs. 50, 000/(sic) were mentioned in the sale deed fictiously. The Plaintiffs being the sons of Mehtab Singh vendor aval the real nephews of Pahlad Singh vendor were antaitled to pre empt the sale. On October 22 May 197-, the Defendant Appellants (vendees) made an application that the plaint and the powers of attorney be kept in safe custody as the same has not been signed by Smt. Nawaldevi wife of Mahtab Singh as alleged in the plaint and in the power of attorney. On this, on 5. 11. 1974 an application under and r(sic) Rule 1 of the CPC (hereinafter to be referred as the Code) for amendment of the plaint was moved on behalf of the Plaintiffs through one Murti Devi widow of Pahlad Singh. it was stated therein that though in the plaint it has stated that it is Nawaldevi who signed it but virutally the plaint and the power of attorney bears her signatures, i.e. Murti Devi widow of Pahlad Singh and under these circumstances, they may be allowed to make necessary amendments in the plaint and the minors be allowed to sue through their guardian Muni Devi widow of Pahlad Singh. This application was oppposed by the defendanc-vendees and sonsequ-ently(sic) the trial Court framed the following issues:-

Whether Smt, Murti Devi thumb marked the plaint as well as the Vakalatnama on 24 7 1974 ; OPA.

Whether the name of Smt. Nawaldevi wife of Mehtab Singh was described in the plaint as well as Vakalatnama as next friend of the minor-Plaintiffs due to bona fide mistake? O. P. A.

Whether the amendment sought is malafide one ? OPR.

Whether the suit has become barred and the vender-Respondents would suffer irreparable loss if the amendment prayed for is allowed ?OPR.

5 Relief.

On issue No. 2 it was held by the trial Court that all the circumstances go to prove that the name of Smt. Nawaldevi was not described in the plaint as well as Vakalatnama as next friend of the minor Plaintiffs due to bona fide mistake. On issue No. 3 it was furter held that the present, application is a malafide one. On issue No. 4 it has been found that since the sale took place on July 24, 1973, and the present suit was filed on July 24(sic), 1974, whereas the application for seeking amendment was filed on November 5, 1974 which is a mala-fide one, the present suit would be time barred if the amendment is allowed at this stage. Feeling aggrieved with the judgment of the trial Court, the Plaintiffs went up in appeal before the Additional District Judge, Nornaul. The learned lower appellate Court neither discussed the evidence nor gave any finding issue wise but decided the matter taking altogether a different view, and accepted the appeal and set aside the order of the trial court. According to lower appellate Court, at the best, it is a case where the plaint and power of attorney remained unsigned and thus this was a procedural defect which could be got amended by the Plaintiffs any time irrespective of the fact, whether the period of limitation for filing the suit had expired. The present appeal has been filed against this order of the lower appellate Court by the vendee-Appellants.

Learned Counsel for the Appellants has vehemently argued that the application for amendment of the plaint could not be allowed as a very valuable right has accrued to the vendee Appellants. Moreover, the application for amendment was found to be malafide one by the trial Court and under the circumstances, the application was liable to be dismissed on this ground alone. It has been further argued that right of pre-emption is a very weak right and no leniency should be shown to the Plaintiff-Respondents in such a a suit of preemption. In support of his contention, he cited Banta Singh v. Smt Hirbajan Kaur (1974) 76 P.L.R. 387 and others, a full Bench decision of this Court it has been held therein that in order to allow an amendment of a plaint or a written statement, the first point to be considered is whether the application tor amendment has been made bona fide. He has also cited -shim(sic) Singh v. Harish Chander (1972) 74 P. L. R. 33, wherein a pre emption suit filed by the mother acting as next friend of vendor''s minor son (pre em tor), the vendees proved that the pre emptor had attained majority when suit was filed the pre emptor moved an application under order 32 Rule 12 CPC for permission to continue the proceedings on his own and independently of the mother and when, thereafter another application was moved by the pre emptor for amendment of the plaint it was held that where a piratcal right is being enforced by such deceitful means, there could be no question of the proceedings being allowed to continue under Order 32(sic) Rule 12 of the CPC or the plaint being allowed to be amended under Order 6 Rule 12(sic) of the Code.

On the o her hand, learned Counsel for the Respondents con-tended that the real question in this case is the interpretation of Order 32 Rule 2 of the ode of Civil Procedure. At the most, it is a mere irregularity in procedure which should be corrected at any time. According to him, insane and minor persons are not juristic persons and are enticed to the sympathy of the Court. It was also maintained that the next friend does not actually become a party to the suit as such and the real object of having next friend is that there may be somebody to whom the Defendant or the opposite party may be able to look for costs. In support of this contention, he cited Ali Ahmed and another. Said Mian AIR l924 Lah. 188 Bachh Raj Vs. Sunder Mal and Others, and Keshav Deo Tulshan Vs. Jagadish Prasad Tulshan, .

After hearing the learned Counsel for the parties, I am of the view that the trial Court took the right view in dismissing the application for amendment of the plaint. It is clear from the facts of the case that the suit was filed by the the minors originally through their mother ,Now Idevl(sic) as their guardian. Admittedly the plaint and the powers of attorney were signed by Murti Devi widow of Pahlad Singh Such practice it allowed, will lead to unnecessary litigation and complications. When it was found that the mischief played upon the Court has c me to the notice of the Defendants, the present application for amendment of the plaint was filed on behalf of the Plaintiffs. In the prevailing circumstances these days, it has become all the more necessary that in order to curb such a practice, the conduct of the alleged guardian of the minor must be deprocated(sic) and if the minors suffer on that account or the conduct of their counsel, they may have their remedy against them. Order 32 Rule 2 of the Code contemplates that where a suit is instituted by or on behalf of a minor without a next friend, the Defendant may appy to have the plaint taken off the file, with costs to be paid by the pleader on other person by whom it was presented. In this view of the matter, the amendment was rightly rejected by the trial Court and the lower appellate Court has not discu ssed the evidence and has taken altogether a different view of the matter. The present case is not one of irregularity as held by the lower appellate Court. It is a clear case of malpractice. The argument of the learned Counsel for the Respondents that at the most the plaint may be treated to be filed on behalf of a minor without the next friend under Order 32 Rule, 2, is not available to him in the present case. Admittedly, in the plaint originally filed, the Plaintiffs did institute the suit through their next friend i e. through their mother, Nawaldevi. Under the circumstances, it cannot be said that the suit was instituted without a next friend and therefore, it was a mere irregu arity All the cases cited by him were distinguishable on, these fasts(sic). Once the Court comes to a conclution that there has been a malafide practice adopted by a party, he must suffer for the same. It is immaterial that on that account, the Plaintiff minor suffer, If the minor are allowed to suffer on account of the conduct of the guardians or their next friend, the proper remedy, will be against them in proper proceedings but while deciding the present suit, the rights of the Defendant cannot be ignored. It may be mentioned here that it is a suit based on the right of pre emp ion and the limitation for filing the suit is the same even for the minors. In other words, minority is no ground for extension of limitation. Admittedly, the suit was filed on the last day of li citation(sic) and it this ame ndment is allowed, the very viluable right which has accured to the vendee Defendant Appellants will be taken away.

Learned Counsel for the Respondents also contended that in view of the provisions of Order 22(sic) Rule 2 of the Code, the effect would be that the plaint would remain pending and the Court will appoint some guardian and then proceed with the case in accordance with law.

According to him. In view of there provisions, the plaint will be taken off the file and the Court may make such order in the matter as it thinks fit. Assuming it is so, but the suit will be deemed to be instituted on the day when the proper guardian is appointed by the Court and if it is so held, then admittedly the suit will be time barred Moreover, it has bun held in Jogat Singh and Ors. v. Joginder Paul and other ILR (1973) Pb. & Mary(sic). 400 tl(sic) at an oredr(sic) through professed to have beer passed under Order 32 Rule 2 of the Code, It must be considered to be one rejecting the plaint, or dismissing the suit and it is appealable as a decree within the meaning of Section 2 of the Code.

For the reasons recorded above, this appeal I aucceeds, order of the Additional District Judge, is set aside and that of the trial Court is restored with costs, to be paid by the guardian of the minors plain tiffs, Cost Rs. 500/-.

R. M. S. Appeal allowed