SM. ACHIA KHATOON Vs. ABDUL HAI

JUDGEMENT

(1.) THIS Rule is directed against an order of the learned Munsif, passed under Order 32, Rule 2 Civ. P. C. directing a plaint field by a Mahomedan girl, admittedly, just over 15 years of age on the date when the suit was filed, i.e., 24 -5 -1947, ((?) to be taken off the file. The learned Munsif was ,of the opinion that she being under 18 years of age was a minor, according to the Indian Majority Act, & so in view of the provisions of Order 32 Rule 1, Civ. P. C. it was necessary that the suit by her should have been Instituted in her name by her next friend.

(2.) A preliminary point was taken on behalf of the opposite party that an appeal did lie against the order of the Munsif, & so the application, under Section 115, Civ. P. C. was not maintainable. Order 43, Rule 1 has not included an order passed under Order 32, Rule 2 among the orders from which an appeal will lie under the provisions of Section 104, Civ. P. C. I am unable to agree with the learned Advocate for the opposite party that such an order under Order 32, Rule 2 should be read to amount to an order under Order 7, Rule 9, returning a plaint to be presented to the Court in which a suit should have been instituted. This is not a case of return of the plaint, & there could be no ground for returning the plaint as there was no dispute as to the Court in which this suit should have been instituted. I hold, therefore, that no appeal did lie, & so the application under Section 115 Civ. P. C. is maintainable. It is contended before me by the learned Advocate for the petitioner in support of the Rule that the provision of Section 3, Majority Act (IX (9) of 1875) under which all persons except those for whose person or property a guardian has been appointed by a Court of justice, & those under the jurisdiction of any Court of Wards shall be deemed to have attained majority when he has completed 18 years & not before, has no application to the case of a Mahomedan girl bringing a suit for dissolution of marriage. Reliance is placed by him on the provision of Section 2 of the same Act which provides that:

(3.) ONCE it is held that the provisions of Section 3 of the Majority Act are not applicable, it is not disputed that by her personal law, this girl having attained the age of 15 years has attained majority. Therefore, a suit by her without a next friend is not against the provisions of Order 32, Rule 1, Civ. P. C.