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Durai Pandi Vs. Lakshmanan Servai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 430 and 431 of 1984
Judge
Reported inAIR1985Mad376; (1985)1MLJ306
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 10 - Order 32, Rule 12
AppellantDurai Pandi
RespondentLakshmanan Servai and ors.
Appellant AdvocateV. Venkataswami, Adv.
Respondent AdvocateSairam, Adv.
Cases ReferredA. M. Sheriff v. Yasmin R. Chida C.R.P.
Excerpt:
- - katha gounden air1940mad522 to state that if the plaintiff was major when the suit was filed then clearly no other person had a right to file the suit on his behalf and the suit had, therefore, to be dismissed and order xxxii rule 12 of the code does not contemplate the giving of an opportunity to a person who is not on record to continue the suit. the court below will do well to dispose of the appeal as expeditiously as possible, and in any event, before 31-3-1985. 16. revisions allowed......a suit describing himself as a minor, though he was a major on the date of the institution of the suit, the suit cannot be regarded as one to which lie was not a party.10. in dulal chandra v. umesh chandra air 1966 ass 93, the case law on the subj1ect was discussed by the learned single judge and an amendment in such a contingence was held to be the appropriate remedy and it was further held that the suit should not be thrown out on the ground of such defect.11. i find that in a. m. sheriff v. yasmin r. chida, c.r.p.4161 of 1981, order dated 22-7-1982, it was opined by k. b. n. singh c. j. that where there was a bona fide mistake in describing the plaintiff, who was in fact a major, as a minor at the time of the institution of the suit, the mistake must be permitted to be rectified by.....
Judgment:
ORDER

1. In these two revisions, the plaintiff in O.S.264 of 1977 on the file of the District Munsif of Devakottai, is the petitioner. Admittedly, at the time of the institution of the suit, the plaintiff was a minor and he was represented by his father and next friend, one Sowmiya Moorthy, who was again represented by his power of attorney. The respondents in these two revisions are the defendants in the suit. There is no necessity to go into the details of the suit for the purpose of disposing of these revisions. Suffice it to state that the suit was dismissed for default on 14-2-1976. The plaintiff took out an application for restoration, I.A. 115 of 1978, under Order IX Rule 9 of the Code of Civil Procedure, hereinafter referred to as the Code. That application was dismissed on 7-10-1980. As against the order of dismissal, an appeal was preferred on 10-2-1981, which got numbered as C.M.A. 10 of 1981, on the file of the Subordinate Judge of Devakottai. Admittedly, anterior to the filing of the said appeal, the plaintiff attained majority on 3-11981. The plaintiff took out I.A. 206 of 1982 under Order XXXII R. 12 of the Code, to declare him as a major and to discharge the next friend and to grant him leave to proceed with the case in his own name. This application was dealt with by the court below and on the ground that on the date when the appeal C.M.A.10 of 1981 was preferred, namely, 10-2-1981, the plaintiff had attained majority and hence the very presentation of the appeal by his father and next friend was incompetent, and so the application was dismissed. On the same day, for the very same reason, the court below held that the appeal itself was not competently laid and dismissed the same. C.R.P. 430 of 1984 has been preferred against the orders passed in I.A. 206 of 1982 in C.M.A.10 of 1981 and C.R.P.431 of 1984 has been preferred against the orders passed in C.M.A. 10 of 1981.

2. Mr. V. Venkataswami, learned counsel for the plaintiff, Would submit that though the prayer was couched as one under Order XXXII Rule 12 -of the Code, what exactly the plaintiff wanted was to prosecute the appeal before the court below without being represented by his father and next friend and in substance, the relief asked for by the plaintiff was an amendment of the cause title and the relevant aspects, of the pleadings and nothing more. Learned counsel says that though on the date when the proceedings were instituted before the court below, the plaintiff had attained majority and the proceedings were instituted as if the plaintiff continued to be a minor, it would only amount to a misdescription and hence it will be just and proper for the court to grant the appropriate relief and render substantial justice instead of dismissing the application on a technical ground, as the court below did. For this submission, learned counsel has got the support of judicial pronouncements which I shall presently refer to.

3. It is true that on the date when the appeal, C.M.A.10 of 1981 was filed before the court below, the plaintiff was a major. The representation that the plaintiff was a minor could only be an irregularity and not an illegality. Describing a party who, in fact was a major, as a minor in the proceedings, if that had happened due to a bona fide mistake has come to be viewed by courts as warranting the allowing of an amendment appropriate and not throwing out the very lis on that ground. The lis is only by the person concerned, be it the plaintiff or the appellant or the petitioner according to the nature of the proceeding. If erroneously, he had come to be described as a minor, when in fact he was a major and if that error is not the result of any mala fide device, Courts should always hasten to set right the matter by allowing the requisite amendment therefor and the courts should not throw the lis taking a technical view. Order I Rule 10 of the Code gives ample discretion to the court to order amendment where the proceeding has been instituted, giving a wrong description of the person. The attitude to render substantial justice must permeate the judicial mind, unless it is a case where the law is clear and inhibits a particular process or where the opposite side will be put to great prejudice. A misdescription has always been viewed as an irregularity and not an illegality and to advance the cause of justice, courts must give a helping hand to the party to rectify the misdescription.

4. A Bench of this court consisting of Abdur Rahim O.C.J. and Burn J. in Shanmugha v. Narayana AIR 1918 Mad 916 held that Order I Rule 10 of the Code is wide enough to cover a case where a major is wrongly assumed to be a minor and a suit is brought on his behalf by his next friend and the proper procedure to be 'adopted in a case of this nature is to return the plaint so that it may be presented after making the necessary amendments.

5. In Dattu v. Bhaoosingh AIR 1926 Nag 40, it was countenanced that where an appeal is preferred by a major through a guardian ad litem under a bona fide mistake that the major is still a minor, the appeal should not be dismissed but should be amended by striking out the name of the guardian ad litem.

6. In Narayan Chandra v. Dulal Chandra : AIR1927Cal477 where In a suit it was through a bona fide belief, the plaintiff was described as a minor and was represented by his mother, the next friend, though lie was a major at the time of the institution, it was held that in as much as the suit was instituted by the plaintiff himself, though through another person purporting to act as his next friend, the suit was maintainable.

7. In Wali Mohammed Khan v. Ishak Ali Khan AIR 1931 All 507 a Special Bench of the High Court of Allahabad had also taken a similar view and it has been observed as follows -

'Where a suit has been filed in the name of a plaintiff by his mother acting as guardian and next friend and describing him as, a minor while in fact he was of age and the suit has been authorised by him, and is prosecuted by him in person, the suit cannot be thrown out on the technical ground that the plaint as originally filed described him as a minor tinder the guardianship of his mother. Defect in its form should be cured if it is due to a bona fide mistake-.

8. In Inderpal v. Bhagawati, AIR 1941 Oudh 43, it has been countenanced that the court has got ample powers to correct an error where the plaintiff was, wrongly described as a minor and it was held that the court, should order amendment and not dismiss the suit and even S. 22 of the limitation Act would not apply to such a case.

9. In Bibi Asghari v. Muhammad Kasim : AIR1951Pat323 , the view taken was that where the plaintiff files a suit describing himself as a minor, though he was a major on the date of the institution of the suit, the suit cannot be regarded as one to which lie was not a party.

10. In Dulal Chandra v. Umesh Chandra AIR 1966 Ass 93, the case law on the subj1ect was discussed by the learned single Judge and an amendment in such a contingence was held to be the appropriate remedy and it was further held that the suit should not be thrown out on the ground of such defect.

11. I find that in A. M. Sheriff v. Yasmin R. Chida, C.R.P.4161 of 1981, order dated 22-7-1982, it was opined by K. B. N. Singh C. J. that where there was a bona fide mistake in describing the plaintiff, who was in fact a major, as a minor at the time of the institution of the suit, the mistake must be permitted to be rectified by allowing the amendment.

12. Mr. V. Sairam, learned counsel for the defendants however, places reliance on a pronouncement of Horwill, J. in Sami Naidu v. Katha Gounden : AIR1940Mad522 to state that if the plaintiff was major when the suit was filed then clearly no other person had a right to file the suit on his behalf and the suit had, therefore, to be dismissed and Order XXXII Rule 12 of the Code does not contemplate the giving of an opportunity to a person who is not on record to continue the suit. First of all, it must be pointed out that before the learned Judge the question of permitting amendment did not arise for consideration so that there was no occasion to consider the question of misdescription and rectification there of Secondly, the pronouncement of the Bench in Shanmugha v. Narayan, AIR 1918 Mad 916 is more on the point and is binding on me. A. M. Sheriff v. Yasmin R. Chida C.R.P. 4161 of 1981, order dated 22-7-1962, the learned Chief Justice has, in my respectful, view, rightly followed the dictum of the Bench in preference to the dictum of the single Judge.

13. Then the question is as to whether this Court, sitting in revision, should countenance the prayer in an application of the present nature as one for amendment. Of course, the prayer is couched in a different form. But, in substance, it is only to remove the name of the guardian as representing tire quondam minor and to permit hint to continue the proceedings before the Court below. This, in fact, amounts to nothing but an amendment. If it is a question of satisfying the formality, then there will be a need for amending the prayer in tire present application itself or filing a regular application for amendment to be considered on merits. But, it will bean unnecessary and a prolonging process and the only ground on which such an application could he resisted is the lack of bona fides. The facts disclosed in the present case do make out bona fides on the part of the plaintiff. The plaintiff has not suppressed any material fact. He has correctly set out his date of birth. There was an obvious misconception with regard to the relief to be sought for. Instead of seeking for an amendment which would serve his purpose and which would be the appropriate relief, most likely on wrong advice, the plaintiff has couched the prayer under order XXXII Rule 12 of the Code. In my view, this Court does not lack power to view tire prayer as one for amendment in substance arid render substantial justice by directing the plaintiff to amend the cause tide in tire appeal and the requisite part or parts of the pleadings before the Court below. Hence, the application filed by the plaintiff, 1. A. 206 of 1982 is being construed as one for amendment in substance arid C.R.P. 430 of 1984 is allowed arid Life cause title arid the requisite part or parts of the memorandum of grounds. of appeal in C.M.A. 10 of 1981 on the file of the Court below will be permitted to be amended by the Court below, by the plaintiff taking out the formal application there for within a period of two weeks after he receives intimation from the Court below on receipt of the papers from this Court.

14. The reasons expressed above naturally oblige me to interfere in the other revision, namely C.R.P. 431 of 1984, and accordingly the same is allowed and C.M A. 10 of 1981 still stand restored to the file of the Court below for it to be construed on merits after the amendments are carried out, as directed Above. I make no order as to costs in both the revisions.

15. I am told that the suit itself is of the year 1977 and it is high time that the appeal C.M.A. W of 1981 is disposed of at the earliest, after the amendments are carried out as directed above. The Court below will do well to dispose of the appeal as expeditiously as possible, and in any event, before 31-3-1985.

16. Revisions allowed.


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