Bajranglal Agarwalla vs Kamalesh Kumar Bawri and Another

Manisana, J.—This revision petition arises from the order dated 27.3.1985 passed by the learned Assistant District Judge No. 1, Gauhati, in Title Suit No. 124 of 1983.

Two minors, namely, Kamalesh Kumar Bawri and Ritesh Kumar Bawri have instituted the suit against the Petitioner. In the "titles of the suit" and the "description of the parties" in the case, the Plaintiffs have been described as:

Shri Kamalesh Kumar Bawri Son of Shri Ratan Kr. Bawri

Shri Ritesh Kumar Bawri Son of Shri Ratan Kr. Bawri. Both are minors and represented by their mother and natural guardian Smt. Puspa Devi Bawri - Plaintiff.

The Petitioner filed an application before the learned Assistant District Judge under Order 32, Rule 2(1) of the CPC for taking the plaint off the file on the ground that the suit had been instituted without a "next friend". The learned Assistant District Judge rejected the petition by or under order dated 27.3.1985. Therefore, the Petitioner filed the revision in this Court.

Mr. J.N. Sarma, learned Counsel for the Petitioner, submits that the description of the Plaintiffs are not in accordance with the Form in the Appendix-A of the Code and that there is an omission to state in the plaint that the "next friend'''' has no interest in the subject matter of the suit adverse to that of the minors.

Under Order 32, Rule 1 of the Code 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. In the present case, instead of stating ''''by the next friend", it has been stated: "Both are minors and represented by their mother Smti. Puspha Devi Bawri''''. Therefore, the description of the Plaintiffs, in the title of the suit, has not been technically or artistically worded. The expression "next friend" denotes through whom a minor acts. The word "by" appearing in Order 32, Rule 1 of the Code means "through the agency or instrumentality of". As such, the u"e of the expression "represented by", in the plaint shows that the suit is intended to be filed by the minors in their names by their mother or through the agency of their mother. Under these circumstances, in the sent present, the minors are the real Plaintiffs and the Plaintiffs act through their mother, that is, the mother is the next friend in true sense. In this view of the matter, Order 32, Rule 1 and the Form in Appendix-A of the Code have been substantially complied with. That apart. It has been more than once held by the highest judicial Authority that the pleadings of the parties should not be strictly construed as in Kidar Lall Seal and Another Vs. Hari Lall Seal, Supreme Court held:

I would be slow to throw out a claim of a mere technicality of pleading when the substance of the thing is there and no prejudice is caused to the other side, however clumsily or inartistically the plaint maybe worded.

(Emphasis added)

In this view of the matter, the plaint cannot be thrown out on the ground that it has not bean properly worded as alluded above.

As regards the next submission of the learned Counsel that there must be a statement in the plaint to the effect that the next friend has no interest in the subject matter of the suit adverse to that of the minors, I am not inclined to accept the contention of the learned Counsel in view of the provisions in Order 32, Rule 3A and 9 of the Code. The Rule 9 provides for the removal of the "next friend". If the interest of the "next friend" is adverse to that of the minor, the "next friend" can be removed under Order 2, Rule 9 of the Code. For the removal of the next friend, an application is to be made on behalf of the minor or by the Defendant, Therefore, if Smti. Pushpa Devi has an interest in the subject matter of the suit adverse to that of the minors, the Defendant or a person on behalf of the minor is to make an application for her removal as next friend. Over and above, under the Rule 3A, even if the "next friend" has interest adverse to that of the minor. It does not render a decree passed against the minor nullity though it may be a ground for setting aside the decree, if such adverse interest of the next friend has caused prejudice to the interest of the minor. In view of the above discussion, the contention of the learned Counsel must fail.

In the result, the petition is rejected. The record called for shall be sent back to the trial Court immediately and the trial Court shall make an endeavour to dispose of the case as early as possible.