DURAI PANDI Vs. LAKSHMANAN SERVAI

JUDGEMENT

(1.) In these two revisions, the plaintiff in O.S. 264 of 1977 on the file of the District Munsif of Devakottai, is the petitioner. Admittedly, at the time of the institution of the suit, the plaintiff was a minor and he was represented by his father and next friend, one Sowmiya Moorthy, who was again represented by his power of attorney. The respondents in these two revisions are the defendants in the suit. There is no necessity to go into the details of the suit for the purpose of disposing of these revisions. Suffice it to state that the suit was dismissed for default on 14-2-1976. The plaintiff took out an application for restoration, IA. 115 of 1978, under Order IX Rule 9 of the Code of Civil Procedure, hereinafter referred to as the Code. That application was dismissed on 7-10-1980. As against the order of dismissal, an appeal was preferred on 10-2-1981, which got numbered as C.M.A. 10 of 1981, on the file of the Subordinate Judge of Devakottai. Admittedly, anterior to the filing of the said appeal, the plaintiff attained majority on 3-1-1981. The plaintiff took out I.A. 206 of 1982 under Order XXXII R.12 of the Code, to declare him as a major and to discharge the next friend and to grant him leave to proceed with the case in his own name. This application was dealt with by the court below and on the ground that on the date when the appeal C.M.A. 10 of 1981 was preferred, namely, 10-2-1981, the plaintiff had attained majority and hence the very presentation of the appeal by his father and next friend was incompetent, and so the application was dismissed. On the same day, for the very same reason, the court below held that the appeal itself was not competently laid and dismissed the same. C.R.P. 430 of 1984 has been preferred against the orders passed in I.A. 206 of 1982 in C.M.A. 10 of 1981 and C.R.P. 431 of 1984 has been preferred against the orders passed in CM.A. 10 of 1981.

(2.) Mr. V. Venkataswami, learned counsel for the plaintiff, would submit that though the prayer was couched as one under Order XXXII Rule 12 of the Code, what exactly the plaintiff wanted was to prosecute the appeal before the court below without being represented by his father and next friend and in substance, the relief asked for by the plaintiff was an amendment of the cause title and the relevant aspects of the pleadings and nothing more. Learned counsel says that though on the date when the proceedings were instituted before the court below, the plaintiff had attained majority and the proceedings were instituted as if the plaintiff continued to be a minor, it would only amount to a misdescription and hence it will be just and proper for the court to grant the appropriate relief and render substantial justice instead of dismissing the application on a technical ground, as the court below did. For this submission, learned counsel has got the support of judicial pronouncements which I shall presently refer to.

(3.) It is true that on the date when the appeal, C.M.A. 10 of 1981 was filed before the court below, the plaintiff was a major. The representation that the plaintiff was a minor could only be an irregularity and not an illegality. Describing a party who, in fact, was a major, as a minor in the proceedings, if that had happened due to a bona fide mistake has come to be viewed by courts as warranting the allowing of an amendment appropriate and not throwing out the very lis on that ground. The lis is only by the person concerned, be it the plaintiff or the appellant or the petitioner according to the nature of the proceeding. If erroneously, he had come to be described as a minor, when in fact he was a major and if that error is not the result of any mala fide device, Courts should always hasten to set right the matter by allowing the requisite amendment therefor and the courts should not throw the lis taking a technical view. Order I Rule 10 of the Code gives ample discretion to the court to order amendment where the proceeding has been instituted, giving a wrong description of the person. The attitude to render substantial justice must permeate the judicial mind, unless it is a case where the law is clear and inhibits a particular process or where the opposite side will be put to great prejudice. A misdescription has always been viewed as an irregularity and not an illegality and to advance the cause of justice, courts must give a helping hand to the party to rectify the misdescription.