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Shanmuga Chetty (Minor by His Next Friend Meenakshi Ammal) Vs. C.K. Narayana Ayyar (Dead) and Nine ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1917)ILR40Mad743
AppellantShanmuga Chetty (Minor by His Next Friend Meenakshi Ammal)
RespondentC.K. Narayana Ayyar (Dead) and Nine ors.
Cases ReferredTaqui Jan v. Obaidulla I.L.R.
Excerpt:
civil procedure code (act v of 1908), order i, rule 10 - plaintiff described as a minor, really a major--bona fide mistake of next friend--dismissal of suit, if proper--procedure to be adopted. - .....the plaint so that it might be presented after making the necessary amendments. rule 10 of order i of the code of civil procedure, 1908, which is practically the same as order xvi, rule 2, of the rules of the supreme court seems to be wide enough to cover a case of this nature. it says that if a suit is instituted in the name of a wrong person, the right person may be substituted. here the suit was instituted by the right person, but through another person purporting to act as his next friend. the ruling in taqui jan v. obaidulla i.l.r. (1894) calc. 866 seems to us to be right and the plaint ought to have been allowed to be amended.2. we therefore allow the appeal. the plaintiff will be allowed to amend the plaint. costs will be costs in the cause.
Judgment:

1. We think that it is clear that Shanmuga Chetty who is described in the plaint as a minor had in fact attained majority four days or so before the plaint was filed. His grandmother apparently made a bona fide mistake that Shanmugam was still a minor when she filed the suit on his behalf as his next friend. The learned District Judge was asked for leave to amend the plaint by striking off the description of Shanmugam, the plaintiff, as a minor suing through his next friend and for other consequential amendments. The learned Judge following the ruling in Sheorania v. Bharat Singh I.L.R. (1898) All. 90 has dismissed the suit. We think however that the decision in Taqui Jam v. Obaidulla I.L.R. (1894) Calc. 866 lays down the law correctly. That was also a similar case and the learned Judges of the Calcutta High Court held that the proper procedure to adopt in a case of this nature, was to return the plaint so that it might be presented after making the necessary amendments. Rule 10 of Order I of the Code of Civil Procedure, 1908, which is practically the same as Order XVI, Rule 2, of the Rules of the Supreme Court seems to be wide enough to cover a case of this nature. It says that if a suit is instituted in the name of a wrong person, the right person may be substituted. Here the suit was instituted by the right person, but through another person purporting to act as his next friend. The ruling in Taqui Jan v. Obaidulla I.L.R. (1894) Calc. 866 seems to us to be right and the plaint ought to have been allowed to be amended.

2. We therefore allow the appeal. The plaintiff will be allowed to amend the plaint. Costs will be costs in the cause.


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