DURAIPANDI Vs. S LAKSHMANAN SERVAI

JUDGEMENT

(1.) : In these two revisions, the plaintiff in O.S.No.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 14.2.1978. The plaintiff took out an application for restoration, I.A.No.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.No.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.No.206 of 1982 under Order XXXII, Rule 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.No.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, 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.No.430 of 1984 has been preferred against the orders passed in I.A.No.206 of 1982 in C.M.A.No.10 of 1981 and C.R.P.No.431 of 1984 has been preferred against the orders passed in C.M.A.No.10 of 1981.

(2.) MR.V.Venkatasami, learned counsel for the plaintiff, would submit that though the prayer was couched as one under Order XXXII, Rule 12 to prosecute the appeal before the Court below without being represented by his father as 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.) A Bench of this Court, consisting of Abdur Rahim, O.C.J. and Burn, J. in SHANMUGA v. NARAYANA, (1917) I.L.R. 40 Mad.743= 41 I.C.510= A.I.R.1918 Mad.916, held that Order I, rule 10 of the Code is wide enough to cover a ease where a major is wrongly assumed to be a minor and a suit is brought on his behalf by his next friend and the proper procedure to be adopted in a case of this nature is to return the plaint so that it may be presented after making the necessary amendments.