BHIM AND OTHERS Vs. HARISH CHANDER

JUDGEMENT

(1.) A suit to pre -empt a sale of land effected by two real brothers was filed on 26th December, 1967 on behalf of Shri Harish Chander respondent who is the son of one of the vendors. The suit had been filed by his mother acting as the next friend. It had been alleged in the plaint that the Harish Chander was a minor on the date of filing of the suit. If the plaintiff's mother had delayed the filing of the suit for another two days, the period of limitation would have run out.

(2.) THE appellant -vendees filed a written statement denying Harish Chander's relationship with the vendors. Latter on they came to know from the school records that Harish Chander had attained the age of majority a few months before the filing of the suit for pre -emption. The vendees, therefore, made an application to the trial Court on 15th April, 1968 that there was no properly presented plaint before the Court and that the mother was not duly authorised to file a suit as the next friend of her son as he had attained majority and that the pre -emption suit should, therefore, be dismissed. A reply signed by the plaintiff's counsel was filed to this application and it was mentioned therein according to Harish Chander's horoscope his date of birth was 14th August, 1951, and that the date of birth 10th August, 1949 had been wrongly given at the time of Harish Chander's admission to the school. Another application bearing signatures which read as 'Harish Chander' and which is signed by the plaintiff's counsel was filed on 10th April, 1969 under Order XXXII, rule 12 of the Code of Civil Procedure in which it was mentioned that the plaintiff had attained the age of majority on 10th August, 1968 and that he may be allowed to continue the proceedings on his own and independently of his mother whose name may be struck off as the next friend. According to this application, Harish Chander's date of birth would be 10th August, 1950. The father and mother of Harish Chander went into the witness box and appeared to be very definite that Harish Chander's date of birth was 14th August, 1950. It may, therefore, appear that the parents of the boy have been giving different dates of birth of their son Harish Chander at different places and that their evidence, oral and documentary, is highly discrepant, if not knowingly false. The pandit who had prepared the horoscope Exhibit P. 1 had not been called into the witness box to prove the document. The name given is different and there is nothing in the document to suggest that it relates to Harish Chander plaintiff. The appellants had summoned the Headmaster of the Government Middle School to prove the dates of birth given by the parents at the time of the admission of Harish Chander and his five brothers and sisters, Exhibit D.W. 1/1 is an extract prepared on the basis of the entries in the school records.

(3.) RELYING on the date of birth given in the school records, the trial Court felt satisfied that the plaintiff had attained the age of majority when the suit was filed and that there was no proper presentation of the plaint and that the provisions of Order XXXII, rule 12 of the Code were not applicable. As the circumstances of the case suggested that the mistake made by the plaintiff or his mother was not bona fide, the application for the amendment of the plaint was rejected and the suit was dismissed on the ground that there was no proper plaint before the Court and that the suit could not proceed.