SURAJ BHAN AND OTHERS Vs. BALWANT 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 suits 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 dated on 17th February, 1968 and the pre -emption suit was filed on 14th February, 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 18th October, 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 13th November, 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 13th November, 1969. Plaintiff's application dated 13th November, 1969, was allowed by the trial court on 4th May, 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before the Additional District Judge against this interim order but as it was felt that no appeal was competent, it was withdrawn on 15th October, 1970.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 the plaintiff -pre -emptor has given rise to this revision petition by the vendees.

(3.) EXACTLY the same question had arisen before me in Bhim Sain and others v. Harish Chander, S.A.O. No. 19 of 1970 decided on 30th November, 1970. On the facts of that particular case, I had found that the plaintiff's mother had filed a pre -emption suit on behalf of her son, who had attained majority long before the filing of the suit and that she had not acted in 'good faith' and that while construing that expression, we have to keep in mind the definition given in the interpretation clause (h) of section 2 of the Limitation Act. Section 21 of the said Act, which deals with the effect of substitution or addition of a new plaintiff of defendant, uses this expression in the proviso to sub -section (1) and the limitation can be made to run from a date prior to the date of amendment only where the omission was due to a mistake made in good faith. In Shanmuga Chetty's case, the Division Bench of the Madras High Court had exercised its discretion in favour of the plaintiff or his next friend because the minor had attained majority only three or four days before the filing of the suit and no useful purpose could be gained by wrongly showing a major to be a minor. In a pre -emption suit, however, one or both the parents could have an ulterior motive in filing a suit by wrongly showing a major as a minor. In my decision in Bhim Sain's case (S.A.O. No. 19 of 1970 decided on 30th November, 1970), I had hinted at a possible motive for practising this deception on the courts. One other motive could be that a conscientious son, who had attained the age of discretion, could not be prevailed upon within time to be a party to the enforcement of a piratical right which can be used as an instrument of blackmail to make the vendees part with an amount over and above the one that had been mutually agreed upon under the law of free contract. As observed by Harrison J. in Ghasi's case (supra), even if it is possible to theories as to why the plaintiff was shown as a minor, I do not think that there is any advantage to be gained in doing so as long as the mistake was not shown to be bona fide and there was gross carelessness and the parties concerned had deliberately misled the Court. Preemption is a personal right and a person who has attained majority has to assert or enforce this right of his own free will and volition within the time allowed by law and he cannot be hustled in doing so by any overbearing parents. The learned trial court has not given any cogent reasons for ignoring the entry in the register of births, copy Exhibit D. 2. The mother's statement leaves hardly any doubt that this entry relates to the plaintiff. If this birth entry was to be ignored, the next best evidence was famished by the electoral rolls, copy Exhibit D. 1, according to which the plaintiff was about 23 years of age on the date of the institution of the pre -emption suit. It is difficult to believe that for more than a year, the parents had remained ignorant of the fact that their son had attained majority long before the suit had been filed on his behalf. In the case of a person, who is a free agent or who is sui juris nobody can act as a guardian or as a next friend and the exercise of such a personal right within time has to be left to the free will and volition of the plaintiff. The vendees' plea that the suit is collusive, therefore, assumes significance in this case. It can be that the young boy, who had recently attained majority, could not be trusted with the extra amount that the parents were hoping to pet by launching this piratical instrument of blackmail and that they wanted to retain a control over the litigation which had prospects of being profitable to them. No injustice may seem to be involved in exercising jurisdiction against a plaintiff or his next friend where he is seeking to enforce a piratical right. This right is being defeated by the vendees by lawful means and the plaintiff and his parents are being made to suffer the consequences of their own gross carelessness, if not deliberate attempts to mislead the Court.