Kirit Narayan vs Chanchal Das

Das, J.—This application is directed against the order of the learned Subordinate Judge of Purnea dismissing a suit for default, but providing that the order of dismissal will not operate to the prajudice of the minor plaintiffs.

The learned Vakil for the petitioners, who are the defendants first party, complains that there was no power in the Court to make an order in this form. The learned Subordinate Judge thought, and, in my opinion, rightly thought, that the interest of the next friend of the minor, who was one of the plaintiffs, was adverse to that of the minors, but if that was his view, he should have proceeded under Order XXXII, Rule 9 and Rule 10. He had no jurisdiction whatever to dismiss the suit and at the same time to say that the order of dismissal will not prejudicially affect the interests of the minor.

We set aside the order of the learned Subordinate Judge and remand the case to him for decision according to law. He will have power, if he thinks that the interest of the next friend is adverse to that of the minor, to remove the next friend under Rule 9 and then stay farther proceedings under Rule 10 until the appointment of a next friend in the place of the present next friend, and then proceed to decide the case according to law.

No question arises as to the adult plaintiff, because apparently he has settled the sage.

Ross, J.

I agree.