Skip to content


Chunilal Bhagwanji Vs. Kanmal Lalchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberAppeal from Order No. 13 of 1942
Judge
Reported inAIR1944Bom201; (1944)46BOMLR350
AppellantChunilal Bhagwanji
RespondentKanmal Lalchand
DispositionAppeal allowed
Excerpt:
.....and verification of plaint-presentment of plaint-amendment of plaint.;in a suit filed by a minor plaintiff by his next friend, the plaint was signed and verified by, and the vakalatnama of the pleader who presented the plaint to the court was signed by, a person who held a general power-of-attorney from the next friend on her own account. a question having arisen whether the plaint was validly prestented, the next friend applied to amend the plaint by striking out the signature of the attorney and inserting her own signature :-;(1) that a general power-of-attorney did not enable the attorney to file suits in the name of unspecified minors using the grantor's name as next friend ;;(2) that the attorney having no authority to present the plaint or sign it, it was not a valid plaint..........a promissory note in favour of a firm, known as kisan baf and sukalchand kanmal, and that the minor plaintiff claims to be the owner of the firm. the plaint was signed and verified by one saremal, and it was presented by a pleader, mr. thakor, whose vakalatnama had been signed by saremal. the plaintiff's case is that saremal was the duly authorized agent of bai dhapu to present the plaint, to sign it, and to appoint a pleader, saremal being authorized so to act under the power-of-attorney which is exhibit 3/2.3. the trial court took the view that under order iii, rule 1, civil procedure code, 1908, the plaint had to be signed in the case of a minor by the next friend, and not by a recognised agent, and under rule 4 a pleader had to be appointed by the next friend, and not by a.....
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal against an order made by the Extra Assistant Judge at Ahmedabad reversing the decision of the trial Court. The question arising is one of procedure.

2. The suit is a suit by a minor by his next friend, his aunt, Bai Dhapu, and it appears from the plaint that the defendant had executed a promissory note in favour of a firm, known as Kisan Baf and Sukalchand Kanmal, and that the minor plaintiff claims to be the owner of the firm. The plaint was signed and verified by one Saremal, and it was presented by a pleader, Mr. Thakor, whose vakalatnama had been signed by Saremal. The plaintiff's case is that Saremal was the duly authorized agent of Bai Dhapu to present the plaint, to sign it, and to appoint a pleader, Saremal being authorized so to act under the power-of-attorney which is exhibit 3/2.

3. The trial Court took the view that under Order III, Rule 1, Civil Procedure Code, 1908, the plaint had to be signed in the case of a minor by the next friend, and not by a recognised agent, and under Rule 4 a pleader had to be appointed by the next friend, and not by a recognised agent. That conclusion was based on the language of Order III, Rule 1, which provides that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf. The trial Court took the view that inasmuch as the next friend is not a party to the suit, a recognised agent cannot be appointed by the next friend; the next friend must himself perform all necessary acts.

4. In appeal the learned Extra Assistant Judge took a different view. He thought that the next friend could appoint a recognised agent. On that point I am disposed to agree with the lower appellate Court. It is, no doubt, perfectly true that a next friend of a minor is not technically a party to the suit, but I think he may well come under the term party for the purposes of Order III, Rule 1. He is for the purposes of the suit the only person who can act in the name of the minor; he is liable to be ordered to pay costs, as though he were a party. It seems to me reasonable to say that for the purpose of appointing a recognised agent to take some step in the suit the next friend is to be regarded as a party to the suit within the meaning of that rule. Therefore, so far as that question is concerned, I agree with the lower appellate Court.

5. But the lower appellate Court did not really address its mind to the terms of the power-of-attorney. The learned Judge seems to have assumed that the power-of-attorney authorized Saremal to file a suit in the name of the minor using the name of Bai Dhapu as next friend. The learned trial Judge, I think, took a different view, because he said that Bai Dhapu had no right to pass a general power-of-attorney in respect of the minor's property, and I think that that view is right. In my opinion a general power-of-attorney would not enable the attorney to file suits in the name of unspecified minors, using the grantor's name as next friend. In the power-of-attorney given to Saremal there is not a word about the minor, or about Bai Dhapu being a next friend. It purports to be a general power-of-attorney in favour of Saremal authorizing him as regards dealings in the names of Kishandas Bapna and Sukalchand Kanmal to do various acts, including filing suits and taking proceedings 'on my behalf.'

6. Now, this suit is not in the name of the firm. It is in the name of the minor, and the suit is not on behalf of Bai Dhapu; it is on behalf of the minor. There is nothing in the power-of-attorney to justify Saremal in filing a suit in the name of the minor using the name of Bai Dhapu as next friend. That being so, Saremal had no authority either to present the plaint or to sign it, and if the plaint was presented by somebody who had no authority to present it, it is not a valid plaint, and the suit was not validly commenced.

7. An application was made to the trial Court to amend the plaint by striking out the signature of Saremal and inserting the signature of Bai Dhapu. The trial Court rejected the application, but the lower appellate Court allowed it, on the basis that the plaint was validly presented, and that the alteration of the signature was a mere matter of procedure. In my opinion, that view is wrong. I think that if Saremal had power to present the plaint he could sign it as the authorized agent of the next friend. But in my view he had no authority to present it, and that being so, the suit was never properly instituted, and a difficulty of that sort cannot be cured by amendment. The only course open to the plaintiff is to file a fresh plaint.

8. In my opinion, the appeal must be allowed, and the plaint rejected. Respondent to pay the costs of the appeal to this Court and to the lower appellate Court.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //