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Shanmuga Chetty, Minor, by His Next-friend Meenakshi Ammal Vs. C. K. Narayana Aiyar, Dead and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in41Ind.Cas.510
AppellantShanmuga Chetty, Minor, by His Next-friend Meenakshi Ammal
RespondentC. K. Narayana Aiyar, Dead and ors.
Cases ReferredTaqui Tan v. Obaidulla
Excerpt:
civil procedure code (act v of 1908), order i, rule 10 - major wrongly described as minor--suit by next friend--amendment of plaint--procedure. - .....the plaint so that it may 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.2. the ruling in taqui tan v. obaidulla 10 ind. dec. 1209. seems to us to be right, and the plaint ought to have been allowed to be amended. 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 Shanmuga 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 Shanmuga the plaintiff as minor suing through his next friend and for other consequential amendments. The learned Judge following the ruling in Sheorania v. Bharat Singh 20 A.k 90 : 9 Ind. Dec. 417. has dismissed the suit. We think, however, that the decision in Taqui Jan v. Obaidulla 10 Ind. Dec. 1209. 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 may 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.

2. The ruling in Taqui Tan v. Obaidulla 10 Ind. Dec. 1209. seems to us to be right, and the plaint ought to have been allowed to be amended. 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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