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Raja Lohar Vs. Nur Mohammad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in115Ind.Cas.456
AppellantRaja Lohar
RespondentNur Mohammad and ors.
Excerpt:
civil procedure, code (act v of 1008), order xxxii, rule 2 - suit on behalf of minor--institution of suit by person not competent to act as next friend--procedure--dismissal of suit, legality of. - - 2. no such action was taken, and the trial court is in its judgment stated that the suit failed by reason of the want of a proper next friend of the plaintiff......not proceeded correctly in this matter. the plaintiff raja lohar minor under the guardianship of jawahir lohar instituted the present suit. the suit proceeded nearly up to the date of the judgment. a day before the judgment the defendants pointed out that jawahir lohar was not a proper guardian as another certificated guardian had been appointed to raja lohar. it was the duty at that time by the trial court to take proceedings under rule 2 of order xxxii. if jawahir lohar could not take action as guardian the suit must be taken to have been filed by the minor without a guardian. rule 2 of order xxxii enacts: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.....
Judgment:

Dalal, J.

1. The subordinate Courts have not proceeded correctly in this matter. The plaintiff Raja Lohar minor under the guardianship of Jawahir Lohar instituted the present suit. The suit proceeded nearly up to the date of the judgment. A day before the judgment the defendants pointed out that Jawahir Lohar was not a proper guardian as another certificated guardian had been appointed to Raja Lohar. It was the duty at that time by the trial Court to take proceedings under Rule 2 of Order XXXII. If Jawahir Lohar could not take action as guardian the suit must be taken to have been filed by the minor without a guardian. Rule 2 of Order XXXII enacts:

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. No such action was taken, and the trial Court is in its judgment stated that the suit failed by reason of the want of a proper next friend of the plaintiff. The Court, however, proceeded to decide the other issue, and dismissed the suit.

3. The lower Appellate Court also first held that the suit was untenable for want of a next friend, and then decided the suit on merits partly in favour of the plaintiff. The appeal, however, was dismissed on the ground of a want of next friend. The plaintiff has come here in second appeal still with Jawahir Lohar representing him as next friend. All this confusion has arisen because of the trial Court not taking action in accordance with Statute Law. I set aside the decrees of both the subordinate Courts and remand the plaint to the trial Court to proceed as laid down in Order XXXII. This will also give the plaintiff an opportunity, if he so desires, to file an application for the appointment of a next friend other than the certificated guardian under Rule 4(2), or possibly he may apply through the certificated guardian. All these steps have to be taken in the trial Court. As it stands, without any further action the plaint was liable to be taken off the file with costs to be paid by the Pleader or other person by whom the plaint was presented. Such action shall now be taken by the trial Court. In any event costs so far of the defendant Nur Mohammad shall be paid by Jawahir Lohar who presented the plaint. Other costs shall follow the event.


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