SURAJ BHAN Vs. BALWAN SINGH

JUDGEMENT

(1.) THIS revision petition has been filed by the vendees in a pre-emption case against the interim order of the trial Court directing that the suit should be proceeded with, even though the plaintiff-pre-emptor, who was the vendor's son, was a major on the date of institution and the suit had been filed on his behalf by the mother as the next friend. The plaintiff had come forward to continue the suit as a major under Order 32 Rule 12 of the Code of Civil Procedure long after the expiry of the period of limitation prescribed for the filing of such suits for the enforcement of a personal right. It may further be observed that the ordinary period of limitation provided for filing such pre-emption suit is not enlarged by the minority or other legal disability of the pre-emptor.

(2.) THE sale which is sought to be pre-empted in this case was effected by the plaintiff's father by a registered deed on 17-2-1968 and the pre-emption suit was filed on 14-2-1969, that is to say, three or four days before the period of limitation was due to run out. The petitioner-vendees took up the objection in their written statement dated 18-10-1969, that the plaintiff was a major on the date of institution and that a collusive suit had been filed on his behalf by the parents and that the father was bearing all the expenses. The mother filed a replication on 1311-1969 persisting that her son was a minor but the plaintiff made an application the same day seeking permission that he may be allowed to continue the suit on his own. Neither the mother nor the son had given the date of birth in these proceedings filed on 13-11-1969. Plaintiff's application dated 13-11-1969 was allowed by the trial Court on 4-5-1970 and the plaint was ordered to be amended. An appeal was filed by the vendees before the Additional District Judge against this interim order but as it was felt that no appeal was competent, it was withdrawn on 15-10-1970. Some of the reasons for withdrawing this appeal were that while allowing the amendment of the plaint, the trial Court had observed that the effect of the plaintiff being a major on the date of the institution of the suit could be left open for decision and that preliminary issues with regard to that objection of the vendees had actually been framed. The trial Court's order deciding these preliminary issues in favour of plaintiff-pre-emptor has given rise to this revision petition by the vendees.

(3.) WHILE passing the impugned order, the learned trial Court has relied on a Privy council ruling in Mohini Mohun Das v. Bunasi Buddan Saha Das, (1890) ILR 17 Cal 580 (PC) and a Single Bench decision of the Lahore High Court in Amritsaria v. Gamun, AIR 1926 Lah 82. The Privy Council ruling is not at all applicable to the facts of the present case. The suits in that case had been filed by one of the three joint creditors. The other creditors had been named as co-plaintiffs though they had not signed and verified the plaints. It was held that all the joint creditors became plaintiffs when the plaints were filed in Court and that the question of adding parties did not arise and that the suits when instituted were not defective for want of any necessary parties. The Single Bench decision in Amritsaria's case (supra) was cited in a later ruling of the same High Court in Ghasi v. Manga, AIR 1932 Lah 322, but was not followed. The one column judgment in Amritsaria's case does not state the facts and it may appear to have been taken for granted that the mistake made by the plaintiff or his next friend was bona fide. In the later ruling it had been observed that in Amritsaria's case, the question of amendment of the plaint was obiter and that the fact of the amendment had been taken for granted as past history and that the question that had arisen was whether it was necessary for the plaintiff to sign the plaint as a major after the mistake had been discovered. The ruling in Ghasi's case may appear to be more in point. It was given in a pre-emption suit filed under similar circumstances. The trial Court had allowed the plaint to be amended and the order allowing amendment had been maintained on appeal by the learned District Judge. The High Court had set aside that order and had directed that the pre-emption suit should be dismissed. It was observed amongst other things, that when a person was in fact a major and a suit had been instituted on his behalf as a minor, the plaint could be allowed to be amended only when the mistake was shown to be bona fide. Bona fide conduct was held to be a question of fact but the finding on the point of the two Courts below had been set aside in second appeal because it was not based on any evidence. Worthless evidence was taken to be no evidence at all as it established nothing. It was also observed that the burden of proving good faith or bona fides was on the party who wanted the Court to exercise its discretion in his favour. The same view with regard to the burden of proving bona fides or good faith was taken in Gaya Din v. Emperor, AIR 1934 Oudh 124. There is then a long string of rulings to show that amendment of the plaint on these facts could be allowed only if the next friend of the plaintiff had made the mistake in a bona fide manner. In this connection, reference could also be made to two other Division Bench rulings of the Madras and Calcutta High Courts in Shanmuga Chetty v. C. K. Narayana ayyar, ILR 40 Mad 743= (AIR 1918 Mad 916) and Narayana Chandra Das v. Dulal chandra Dutta, AIR 1927 Cal 477, respectively.