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Nathu and ors. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSecond Appeal No. 671 of 1961
Judge
Reported inAIR1972Guj35
ActsCode of Civil Procedure (CPC), 1908 - Order 23, Rule 1 - Order 32, Rule 1
AppellantNathu and ors.
RespondentState of Gujarat and ors.
Appellant Advocate D.U. Shah and; S.M. Shah, Advs.
Respondent Advocate G.T. Nanavati, Assistant Government Pleader,; D.B. Vyas,;
Cases ReferredRam Saruplal v. Shah Latafat Hossein
Excerpt:
.....the minor, such withdrawal naturally would be liable to be set aside on the ground that the withdrawal was not in the best interest of the minor. it is true that if a minor, from material on record, satisfied the court that the suit was withdrawn by his next friend as a result of fraud and collusion or due to gross negligence, the court may interfere and restore the suit to the file......the withdrawal pursis given by plaintiff no.2 on behalf of himself and other plaintiffs. as the suit was withdrawn unconditionally, permission of the court, in fact, was not necessary. therefore in my opinion, provisions of order 23, rule 1 would not apply to the facts of this case. there is nothing in this rule which enjoins on the court to make inquiry whether interest of the minor is protected or not before the plaintiff if allowed to withdraw the suit. mr. shah, however, relying on the analogy of order 32, rule 7 of the code of civil procedure, submitted that whenever, a minor is involved, it is the duty of the court to find out whether the interest of the minor would be protected by permitting the plaintiff to withdraw the suit. in my opinion, rule 7 of order 32 could have no.....
Judgment:

(1 to 3) x x

4. Mr. Shah next urged that in the instant case, the plaintiff No.1 was a lunatic and he was represented by plaintiff No.2 as his guardian. Plaintiff No.2 could not withdraw the suit unless the court was satisfied that withdrawal of the suit was in the interest of the lunatic. He, therefore, urged that the withdrawal of the suit by plaintiff No2 was not legal, and in the interest of justice, the court should permit the next friend of plaintiff No.2 to proceed with the suit. In this connection, Mr. Shah referred to Order 23, Rule 1 and Order 32, Rule 7 of the Code of Civil Procedure. Order 23, Rule 1, states--

'(1) At any time after the institution of a suit the plaintiff may, as against all or any of the defendants, withdraw his suit or abandon part of his claim'.

Sub-rule (2) states--

'(2) Where the court is satisfied--

(a) that a suit must fail by reason of some formal defect, or

(b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim.

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of a claim.'

Sub-rule (4) states--

'(4) Nothing in this rule shall be deemed to authorise the court to permit one of several plaintiffs to withdraw without the consent of the others.' Mr. Shah urged that in the instant case, plaintiffs Nos. 3,4 and 5 had not given their consent to the withdrawal of the suit by plaintiff No.2 and therefore, withdrawal of the suit was bad in law. This argument also loses its force in view of the fact that plaintiffs Nos.3, 4 and 5 had already signed a vakalatnama of Advocate Mr. Sinrojawho had signed the withdrawal pursis given by plaintiff No.2 on behalf of himself and other plaintiffs. As the suit was withdrawn unconditionally, permission of the court, in fact, was not necessary. Therefore in my opinion, provisions of Order 23, Rule 1 would not apply to the facts of this case. There is nothing in this rule which enjoins on the court to make inquiry whether interest of the minor is protected or not before the plaintiff if allowed to withdraw the suit. Mr. Shah, however, relying on the analogy of Order 32, Rule 7 of the Code of Civil Procedure, submitted that whenever, a minor is involved, it is the duty of the court to find out whether the interest of the minor would be protected by permitting the plaintiff to withdraw the suit. In my opinion, Rule 7 of Order 32 could have no application to the facts of this case. In that rule next friend or guardian of the minor for the suit, cannot enter into any agreement or compromise on behalf of a minor, with reference to the suit, without leave of the court. If such next friend or guardian entered into any agreement or compromise with regard to the subject-matter of the suit, on behalf of the minor, the court has to satisfy itself that such an agreement or compromise was in the interest of a minor. No such provision is found in Order 23 Rule 1. Therefore, it is difficult to import provisions of Order 32, Rule 7 into Order 23, Rule 1. Mr. Shah, however, urged that the court as a court of equity was bound to protect the interest of the minor or lunatic and that in every case, provisions of the Civil Procedure Code may not be specifically attracted. He referred to several decisions to which I will presently refer. In the case of Doraswami Pillai v. Thungasami Pillai, (1904) ILR 27 Mad 377 it was observed--

'A suit relating to the estate or person of an infant, and for his benefit, has the effect of making him a ward of court, and no act can be done affecting the property of the minor unless under the express or implied direction of the court itself.'

In that case, the suit was conducted on behalf of a minor and was withdrawn without leave being asked for or given to bring another suit. The order passed on the petition for withdrawal was set aside by the High Court on revision and the suit resorted to the file of the lower court for disposal according to law. The facts of this case disclosed that the junior vakil who appeared on behalf of the plaintiff had given a withdrawal pursis keeping the next friend of the minor in the dark. In the application for review of the order passed by the court permitting the plaintiff to withdraw the suit, the next friend was examined in court and she had stated that she was not aware of the contents of the vakilpatra which permitted the lawyer to withdraw the suit. She even did not know that she had put her thumb mark on the petition which was for withdrawal of the suit. In the light of the circumstances which were brought out in that case, the Madras High Court had observed that a suit relating to the estate or person of an instant and for his benefit has the effect of making him a ward of court. Withdrawal of the suit in that case was in pursuance of the agreement or compromise entered into with the defendant without leave of the court. Thus, if a withdrawal is in pursuance of an agreement entered into with the other side, court's permission would be necessary because unless the court was satisfied that the agreement or compromise was in the interest of the minor, no such compromise could be sanctioned. Therefore, if the withdrawal was in pursuance of an agreement or compromise with the other side and if the withdrawal was done without the court sanctioning the compromise as being in the interest of the minor, such withdrawal naturally would be liable to be set aside on the ground that the withdrawal was not in the best interest of the minor. The facts of the Madras case, therefore, cannot be said to be applicable to the instant case. Similarly, the case of Ram Saruplal v. Shah Latafat Hossein (1902) ILR 29 Cal 735, will not help the appellants though the ratio of that case apparently does help them, where it was observed that--

'When the next friend of a minor plaintiff withdraws from the suit, it is open to the minor through another next friend to have the suit reopened on review, on the ground that the former next friend, though guilty of no fraudulent conduct, was grossly negligent of minor's interest in withdrawing from the suit.'

In the course of the judgment, their Lordships of the Calcutta High Court observed--

'...........a minor is entitled to invoke the assistance of a court of equity either by an application for review of judgment or by separate suit'.

5. Relying on these observations, Mr. Shah urged that in the instant case, the plaintiff's application did not disclose specific reason for withdrawing the suit. He submitted that the suit which had proceeded for a pretty long time in court was withdrawn by plaintiff No.2 on behalf of plaintiff No.1 for insufficient reasons. It is true that if a minor, from material on record, satisfied the court that the suit was withdrawn by his next friend as a result of fraud and collusion or due to gross negligence, the court may interfere and restore the suit to the file. But in such a case, the remedy which the minor could avail of, would be by way of review of judgment or by a separate suit. If application for review of judgment was given or a separate suit was field, some evidence could have been led showing that the next friend was grossly negligent or he had fraudulently or in collusion with the other side, had withdrawn the suit. In the absence of any such evidence showing that the minor was in any way prejudiced by the withdrawal of the suit or any circumstance on record indicating that the suit was withdrawn by the next friend in collusion with the other side or due to gross negligence, it would not be proper to restore the suit on file merely because the minor or a lunatic was a party to the suit. Admittedly, no such review application was filed on behalf of the minor nor a separate suit was field and straightway, an appeal to the district court was filed against the order of the court permitting the plaintiffs to withdraw the suit. Thus, in the absence of any material on record, it would not be proper to set aside the order passed by the lower courts and restore the suit on file. The other two cases referred to by the learned Advocate for the appellants reported at 47 Ind App 88 at page 89 = (AIR 1920 PC 60) and (1889) ILR 13 Bom 137 would not apply to the present case because in those cases, the question was whether an agreement entered into on behalf of a minor was for the benefit of the minor or not. No such question being in involved in the present case. I need not consider them in details. As the learned Advocate for the appellants has been unable to bring out any cogent material showing that the minor's interest was prejudiced by the withdrawal of the suit, I see no reason to interfere with the orders passed by the Courts below.

6. Ordered accordingly.


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