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Ram Sarup Lal Vs. Shah Latafat Hossein - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1902)ILR29Cal735
AppellantRam Sarup Lal
RespondentShah Latafat Hossein
DispositionAppeal allowed
Cases ReferredKarmali Rahimbhoy v. Rahimbhoy Habibbhoy
Excerpt:
minor - suit on behalf of minor by next friend--gross negligence of next friend--review--right of minor to have suit restored--minor consenting party to petition for withdrawal--civil procedure code (act xiv of 1882) section 462. - .....the suit be allowed to be with drawn and be struck off. as the opposite party does not (sic)clain costs, no costs be allowed.' on the face of that petition, the pleaders for the defendants wrote: ' without admitting the contents we give up the costs.' the order of the court was that the plaintiffs do withdraw from the suit.2. on the 6th september 1901, the minor plaintiff through his mother presented an application to the subordinate judge for review of judgment, on the ground that the application for withdrawal had been collusively made to the prejudice of the minor. evidence was gone into. monji lal deposed that he had no fraudulent motive in applying to withdraw, and the court was satisfied that the minor was present in court and personally joined inkling the application for.....
Judgment:

Pratt and Mitra, JJ.

1. This Rule was issued under the following circumstances: One Monji Lal on his own behalf and also as next friend of his minor nephew, Ram Sarup Lal, brought a suit for the value of goods sold and delivered. Subsequently, on the 6th August 1901, he presented a petition to the Court in these terms:' In this suit Shah Latafat Hossein and Shahed Hossein have personally told your petitioner to withdraw the suit, and that they would pay the amount found on adjustment of accounts after the sed an or been withdrawn. Tour petitioner has full faith in them. it is therefore prayed that the suit be allowed to be with drawn and be struck off. As the opposite party does not (sic)clain costs, no costs be allowed.' On the face of that petition, the pleaders for the defendants wrote: ' Without admitting the contents we give up the costs.' The order of the Court was that the plaintiffs do withdraw from the suit.

2. On the 6th September 1901, the minor plaintiff through his mother presented an application to the Subordinate Judge for review of judgment, on the ground that the application for withdrawal had been collusively made to the prejudice of the minor. Evidence was gone into. Monji Lal deposed that he had no fraudulent motive in applying to withdraw, and the Court was satisfied that the minor was present in Court and personally joined inkling the application for withdrawal of the suit. On these materials the Court held that the minor plaintiff was not entitled to have the suit restored On application to this Court by the minor through his mother, a Rule was issued calling on the opposite party to show cause, why the order of the Subordinate Judge allowing the withdrawal of the suit and dismissing the application for review should not be set aside, and the case instituted by the guardian on behalf of the minor should not be allowed to proceed. The learned Subordinate Judge was clearly in error in allowing his mind to be influenced by the fact that the minor was a consenting party to the petition for withdrawal of the suit. That circumstance was wholly irrelevant. It is because of a minor's immaturity of judgment that the Court interferes to safeguard his interests and protect him, even against his own acts and admissions. Then as to Monji Lal's conduct, it may be true that no fraudulent motive was present to his mind, but that would not necessarily suffice to conclude the minor and to debar him of all remedy. Whether the guardian had or had not received verbal assurances that the defendants would pay what was justly due, he was grossly negligent of the minor's interests in withdrawing the suit unconditionally and without any writing by which the defendants would be bound. Caution was all the more needed after the defendants had through their pleaders recorded on the petition that they did not admit its contents. The best that can be said for Monji Lal is that he was a credulous simpleton, and grossly neglected the most ordinary precaution for the protection of the minor. Against such conduct as his, 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. As remarked by Lord Hardwick in Gregory v. Molesworth (1747) 3 Atk. 626 the infant has such a remedy when either gross laches or fraud and collusion appear in the next friend.

3. This case may not strictly come within the terms of Section 462 of the Code of Civil Procedure, because it is not proved that the defendants entered into any agreement or compromise with the next friend of the infant, but it is within the scope of the general principle enunciated in Story's Equity Jurisprudence, Section 1353: 'In all cases where an infant is a ward of Court, no act can be done affecting the person or property or state of the minor, unless under the express or implied direction of the Court itself.' And, as was observed by Scott J., in the case of Karmali Rahimbhoy v. Rahimbhoy Habibbhoy (1888) I. L. R. 13 Bom. 137. '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.' In the result we direct that the Rule he made absolute, and that the case of the minor plaintiff be restored to the file and be tried on the merits, the mother of the minor being substituted as his next friend.

4. We do not interfere with the order discharging the Court of Wards from the case with costs.


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