S.N. Andley, J.
(1) The first appellant is the mother of appellants Nos. 2 to 4. She is the wife of Babu Ram, one of the two sons of deceased Kalyan Dass. For himself and on behalf of his sons, appellants Nos. 2 to 4 and another son Rattan Lal, Babu Ram instituted suit No. 567 of 1957 in the Court of Subordinate Judge 1st Class, Delhi, for partition of the suit properties and accounts on the ground that the said properties were joint family properties. The defendants to this suit were his brother Jodhi Ram, the latter's sons and his mother. On December 31, 1957, Babu Ram filed an application merely staling that he inttended to withdraw the suit and did not want to pursue the same and prayed that the suit may be consigned to the record room. Both Babu Ram and Jodhi Ram supported this application by their respective statements recorded on the same date and the suit was dismissed. Liberty was not reserved by Babu Ram either in his application or in his statement in Court to institute a fresh suit in respect of the subject matter of this suit nor was permission granted by the Court to withdraw with liberty to institute a fresh suit. It may be stated that appellants Nos. 2 to 4 are minors.
(2) Thereafter Jai Devi and her sons filed the suit out of which the present appeal arises on November 3, 1958 against Jodhi Ram, his sons, Mohan Devi wife of the deceased Kalyan Das and Babu Ram. This suit was for partition of the very same properties and for accordance etc. in respect thereof. It was also prayed in this suit that the withdrawal by Babu Rani of the earlier suit was vitiated by fraud and was illegal, ineffective arid without jurisdiction.
(3) Since three of the sons of Jodhi Ram (defendants Nos. 5 to 7) were minors and their eligible relations were not prepared to become their guardians for the suit, the Subordinate Judge appointed Sat Parkash, Ahlmad of his Court, as guardian-ad-litem.
(4) On the written statements filed, the Subordinate Judge framed the following three preliminary Issues :
ISSUENo. 1-Whether the plaint has been properly valued for purposes of court fee and jurisdiction Issue No. 2-Whether the present suit is not barred by Order 23. rule 1 Civil Procedure Code Issue No. 3-Have the plaintiffs a locus standi to bring a suit for partition in the life time of defendant No. 9?
(5) Issue No. 1 was decided in favor of the appellants. Issue No. 3 was decided in favor of plaintiffs Nos. 2 to 5 but against Jai Devi appellant No. 1. Issue No. 2 was decided against the appellants and as a result of the finding on this Issue, the suit was dismissed leaving the parties to bear their respective costs. Even though the Ahlmad of the Court of the Subordinate. Judge had been appointed as guardian-ad-litem. necessary corrections were not made in the cause title of the plaint by showing that the Ahlmad had been appointed guardian-ad-litem of the three minors sons of Jodhi Ram and the name of Jodhi Ram continued to appeal in the plaint as their guardian. What is more, even in the decree which was drawn up consequent upon the dismissal of the suit, Jodhi Ram was shown as the guardian of his three minor sons and the name of the Ahlmad who had been appointed guardian-ad-litem was not indicated in the decree-sheet.
(6) The present appeal was filed, it is not disputed, well within time. Respondents Nos. 5, 6 and 7 were shown in the memorandum of appeal as being represented by their father Jodhi Ram and not by the Ahimad of the Court. When this appeal came up for hearing on January 7, 1970, the respondents took up a point that the appeal had been rendered incompetent as the guardian-ad-litem appointed by the trial Court for respondents Nos. 5 to 7 had not been shown as their guardian in the memorandum of appeal. The counsel for the appellants wanted time to invesitgate the matter and when the appeal was taken up for hearing on January 30, 1970, an application : C.M. No. 47 of 1970, was filed by the appellants. In this application it was stated that notice of this appeal had been issued by this Court and had been accepted by Jodhi Ram as guardian of respondents Nos. 6 and 7 without any protest while respondent No. 5 who had attained majority in the meantime had received it himself. It was further stated :-
'THATthe petitioners were all minors during the pendency of the suit in the trial Court, their mother who was a co-plaintiff and their next friend was an illiterate lady and their counsel in the appellate Court was different from the one engaged in the trial Court and, thereforee, in the memo. of parties filed Along with the grounds of appeal, Jodhi Ram was shown as the guardian-ad-litem of defendants 5 to 7 as in the copy of the judgment.'
(7) It was, thereforee, prayed that the notice of the appeal be issued to Sat Parkash, Ahimad of the trial Court as guardian-ad-litem. Notice of the appeal was accordingly issued to Sat Parkash, Ahlmad, who appeared and for whom Mr. B. R. Sabharwal was appointed as an Advocate at the cost of the appellants. This order was made without prejudice to the respondents' right to urge the question of limitation and the incompetency of the appeal as filed. Thereupon, the appellants filed another application, C.M. 229 of 1970 for amendment of the memorandum of parties so as to substitute the name of Sat Parkash aforesaid as the guardian-ad-litem of respondents Nos. 5 to 7 in place of their father Jodhi Ram (respondent No. 1 ), This application is opposed and it is urged that the appeal as filed was incompetent as the name of the guardian-ad-litem, Sat Parkash, was not shown in the memorandum of 'appeal when filed.
(8) There is no doubt that under sub-rule (5) of rule 3 of Order 32 of the Code of Civil Procedure, a person appointed as guardianad-litem for a minor defendant continues as such throughout all proceedings arising out of the suit including proceedings in any appellate Court. Reliance is placed by the respondents upon the decision reported in Air 1968 Assam & Nagaland 61 in re: Tankeswar Das and another v. Bhagaban Chandra Choudhury and other to urge that if the guardian-ad-litem appointed in the trial Court is not shown as representing the minor respondents in the appeal, the appeal cannot be held to have been properly filed. With respect, we do not agree.
(9) The real party to an appeal is not the guardian-ad-litem appointed but the minor himself. So long as the minor is made a respondent the mere fact that the guardian-ad-litem appointed by the trial Court is not shown to represent him in the appeal would not affect the competency of the appeal.
(10) Reliance is next placed on : AIR1968All201 in re: Lala Gur Prasad v. Smt. Laxmi Devi. In this case the co-mortgagees were sought to be made parties after the period of limitation had expired. It was held that if the co-mortgagees are allowed to be made parties after the period of limitation had expired by the amendment of the plaint, such amendment would amount to giving life to a case which was already dead. This was not a case where the co-mortgagees had been made parties but there was a defect in their description. This case can, thereforee, be of no assistance to the respondents.
(11) There is on the other hand abundant authority for the proposition that amendment of the cause title by including the name of the guardian-ad-litem as representing the minor is a case of misdescription. The first case is reported in in re: Bachh Raj v. Sunder Mal and others where it is observed:
'SUBSEQUENTsteps taken by a party to secure the proper representation of the minor, whether he is a plaintiff or a defendant, can validate the earlier irregularities, if any in the mention of the next friend or guardian-ad-litem of the minor. Thus, where the minor was actually jolined as a party to the suit and his next friend was also a party to the appeal not only in his individual capacity but as a next friend of another minor, then the fact that a minor was not, at the time of the institution of appeal against him, described as a minor and was not represented by his next friend is a case of misdescription and is capable of being rectified even at the stage of hearing of appeal.'
(12) In I.L.R. 30 Allahabad 55 in re : Rup Chand v. Dasodha and another, which was a case before the present Code of Civil Procedure, the defendant to the suit was a minor and was represented in the trial Court by the guardian-ad-litem. In the memorandum of appeal which was filed, the guardian-ad-litem was not made a party to the appeal. The decree in this case did not state the fact that there was a guardian-ad-litem. The memorandum of appeal was filed within time but an application was made after the expiry of the time allowed for the presentation of the appeal to add the name of the guardian-ad-litem to the record. It was contended that the appeal was not complete until the guardian-ad-litem was added and that when that was done, the appeal was barred by limitation. This contention was repelled. The reasoning adopted was that a suit was brought against a minor before a guardian was appointed and that limitation runs from the date of the plaint and not from the appointment of a guardian. The same reasoning was applied as governing a memorandum of appeal. It was pointed out that a guardian-ad-litem is not a party to the suit or appeal. He is merely named in the record as the person appointed by the Court to look after the interest of the minor. It has been held in Air 1960 A.L.J. 423 in re : Laxman Karan and another v. Bansidhar, that an appeal filed against a minor without a proper guardian is competent. If a suit against a minor for whom no guardian is appointed is not a nullity as held in A.I.R. 1947 All 357 in re : Ali Yacin v. Bhagwan Das and others, a memorandum of appeal against a minor for whom no guardian is appointed cannot also be a nullity. To the same effect are cases reported in : AIR1936Pat153 in re: Rai Satyadeya Narayan Sinha and others v. Tirbeni Prasad and others and 1960 MP 73 in re : Tulsiram v, Shyamlal Ganpatlal and another. We are, thereforee, of the view that the present appeal cannot be held to be incompetent when filed and we hereby allow the amendment of the cause title of the appeal as prayed in C.M. No. 229 of 1970.
(13) Coming to the morits of the appeal theonly Issue which require determination is whether the suit out of which the present appeal has arisen was barred by Order 23, rule 1 of the Code of Civil Procedure. The learned Subordinate Judge came to the conclusion that where a party withdraws a suit without seeking permission to bring a fresh suit on the same cause of action or abandons a part of the claim, he is precluded from claiming the abandoned relief or from bringing a fresh suit on the same cause of action. This proposition, as a general proposition, is correct but it does not apply to suits for partition. In 1967 (1) Mlj 175 in re : Bajah V. Maheswara Rao V. Bajah V. Bajeswara Rao it has been held that :-
'SOfar as a suit for partition or a suit for redemption is concerned, it is exiomatic that, when the plaintiff withdraws his suit, he will be entitled to file a fresh suit as the cause of action is recurring cause of action. Even if the plaintiff is not granted permission, under Order 23, rule 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases.'
(14) To the same effect are the cases reported in , Air 1944.Sindh 192; Air Mad 112; Air 1935 Mad 909 and Air 1924 All 905. We may only mention one other case reported in A.1.R. 1950 FC 1 in re : Thota China Subba Rao and others v. Mattapalli Raju and others, where it has been observed:-
'PROVISIONSlike Order 9, rule 9 or Order 23, rule 1 will not debar the mortgagor from filing a second suit for redemption because, as in a partition suit the cause of action in a redemption suit is a recurring one.'
(15) Even though, thereforee, liberty was not reserved while withdrawing the earlier suit, the present suit would not be barred by Order 23, rule 1 of the Code of Civil Procedure.
(16) In the result, we set aside the judgment and decree of the learned Subordinate Judge based upon his finding on Issue No. 2. The case is remanded to the Court of the Commercial Subordinate Judge, Delhi, for trial on merits. The parties are directed to appear before the Commercial Subordinate Judge, Delhi, on 5th May, 1970.
(17) In the circumstances of the case, we leave the parties to bear their respective costs of the appeal.