CHUNILAL BHAGWANJI Vs. KANMAL LALCHAND

JUDGEMENT

(1.) This is an appeal against an order made by the Extra Assistant Judge at Ahmedabad reversing the decision of the trial Court. The question arising is one of procedure.

(2.) The suit is a suit by a minor by his next friend, his aunt, Bai Dhapu, and it appears from the plaint that the defendant had executed a promissory note in favour of a firm, known as Kisan Baf and Sukalchand Kanmal, and that the minor plaintiff claims to be the owner of the firm. The plaint was signed and verified by one Saremal, and it was presented by a pleader, Mr. Thakor, whose vakalatnama had been signed by Saremal. The plaintiff's case is that Saremal was the duly authorized agent of Bai Dhapu to present the plaint, to sign it, and to appoint a pleader, Saremal being authorized so to act under the power-of-attorney which is exhibit 3/2.

(3.) The trial Court took the view that under Order III, Rule 1, Civil Procedure Code, 1908, the plaint had to be signed in the case of a minor by the next friend, and not by a recognised agent, and under Rule 4 a pleader had to be appointed by the next friend, and not by a recognised agent. That conclusion was based on the language of Order III, Rule 1, which provides that any appearance, application or act in or to any Court, required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognised agent, or by a pleader appearing, applying or acting, as the case may be, on his behalf. The trial Court took the view that inasmuch as the next friend is not a party to the suit, a recognised agent cannot be appointed by the next friend; the next friend must himself perform all necessary acts.