MOHAMMED KASSIM ABDUL HAMEED Vs. KOCHUVAVA MOHAMMED ABDULLA

JUDGEMENT

(1.) Defendant in O.S. 169 of 1979of the Munsiff's Court, Attingal is the appellant. Plaintiff (respondent) Filed the suit for recovery of possession of the plaint schedule building with arrears of rent. The Munsiff dismissed the suit holding that the suit is not maintainable as the property belongs to two minors, whereas the suit has not been filed on their behalf by their guardian or next-friend. Plaintiff filed A.S. 100 of 1981 before the Sub-Court, Attingal. The learned Sub-Judge reversed the finding of the Munsiff and decreed the suit.

(2.) Main contention of the defendant is that as the property belongs to the minors, Najudeen and Sudheer the suit filed by the plaintiff styling himself as the owner is not legally maintainable. A perusal of Ext. A-1 rent deed would clearly show that the property belongs to Najudeen and Sudheer. Both of them were minors on the date of suit. The plaint claim is based on Use strength of Ext. A-1 rent deed. In the plaint no reference is made as to the ownership of the property by the minors. But Ext. A-1 clearly reveals that the property belongs to the minors and that the rent deed was executed by the defendant hi their favour.

(3.) Older 32, Rule 1 provides that every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Order 32, Rule 2 states that where a suit is instituted by or on behalf of a minor without a next friend, it is open to the defendant to apply to have the plaint taken off the file with costs to be paid by the pleader or other person by whom it was presented. As Ext A-1 clearly shows that the property belongs to die minors, the suit ought to have been instituted in the name of the minors by their next friend. A reading of the plaint would show that the plaintiff has filed the suit in his individual Capacity relying on Ext. A-1 rent deed which has been executed in favour of the minors who are the owners of the property. As the minors alone can claim arrears of rent by a proper suit aether person cannot file it in his own name. Every suit by a minor has to be instituted in his name by his next friend. Minor is the real plaintiff in the suit filed to safeguard his interests or claiming reliefs. Next friend is not a party to the suit in the proper sense of the term. He only represents the minor's interest and acts for him. He cannot arrogate himself to the position of the plaintiff without the minor on the party array and claim reliefs in the suit concealing the interest of the minors in the property. The Trial Court was justified in holding that the suit is not maintainable. The judgment and decree of the Sub-Judge are set aside and that of the trial Court are confirmed. The Second Appeal is allowed with no order as to costs. Second appeal allowed.