Trevelyan and Ameer Ali, JJ.
1. This suit was brought on behalf of a person who was alleged to be a minor. The defendant in his written statement contended that the plaintiff' was not a minor but in reality had attained his full age. The learned Judge in the Court below tried only the issue as to whether the defendant's plea was true, viz., that the plaintiff was not a minor; and on finding against the plaintiff on that issue dismissed the whole suit. We have not gone into the question whether as a matter of fact the plaintiff was a minor, as having regard to the view which we take as to what course the learned Judge ought to have adopted the learned pleader for the appellant has not contested that finding. We think that the proper penalty for this mistake on the part of the plaintiff, if it was a mistake, ought not to be the loss of the whole suit but the payment of such costs as would properly indemnify the other side. The proper course to be pursued, where the opposite party contends that a plaintiff who is alleged to be a minor is really an adult, is that the defendant apply that the plaint be taken off the file or be amended. If it be not amended the next friend's name may be treated as mere surplusage and the suit be allowed to proceed.
2. We think it quite clear that the learned Judge having found that the plaintiff was not a minor ought to have given him an opportunity of electing whether he should proceed with the suit himself. No such opportunity was given, and the suit was dismissed. If we were to uphold this decision the result would be, the suit being now barred by limitation, that the plaintiff, because of this error, whether intentional or not, would lose the whole of his cause of action. We therefore set aside the decree of the Court below, and we give the plaintiff leave to amend the plaint and to make such alterations in it as are now necessary in consequence of its now being found that he is a major. We think, however, that it is clear that the defendant is entitled to have all the costs he has incurred up to this date. We accordingly leave untouched the decree of the Court below so far as it orders payment of costs to him, and we also direct that the appellant pay to the respondent his costs in this Court; and as the case has not been heard on the merits but disposed of on a preliminary issue we fix the pleader's fee at five gold mohurs. These sums, viz., the costs in the Court below and in this Court, must be paid within one month from the date on which the record shall arrive in the lower Court, and if so paid the suit will then be tried on its merits. If they be not so paid this appeal will stand dismissed with costs. The record will be sent down at once.