This is an appeal by the plaintiffs arising out of a suit for ejectment of the defendant by delivery of Khas possession and for recovery of arrears of rent. Plaintiffs' case is that the defendant look lease of the suit land at an annual rent of Rs 6/ per year under an unregistered deed of lease. In the lease the period was fixed for ten years with effect from the 16th day of Baisakh 1355 B. S. It is alleged that the defendant defaulted payment of rents for the years 1359, 1360 and 1361 B.S. for which the plaintiff brought a suit for ejectment and recovery of arrears of rent. The suit was dismissed in respect of the ejectment as there was some defect in the notice. But the suit was decreed for recovery of rent. As the defendant failed to pay rent the present suit has been filed after issuing the necessary notice. (2) The case of the defendant was that the land originally belonged to the predecessors-in-interests of the defendant, who were four brothers having equal shares therein After partition the land was divided and some homestead property fell to the share of the' defendant's father which he was possessing as such. The defendant after his father's death inherited the said property. The tenancy was denied by the defendant. (3) Both the courts found in favour of the plaintiffs' title to the property. The trial court decreed the suit. But on appeal the decision of the trial court was reversed mainly on two grounds: (1) that as plaintiffs Nos. 1 and 2 were major on the date of the suit and have wrongly described themselves as minors and instituted the suit as minors through their mother plaintiff No. 4. the suit is not main tainable and (2) (bat the notice was not valid. (4) In the plaint plaintiff No 1 Dulal Ch Majumdar. plaintiff No 2 Jogesh Ch. Mazumdar and plaintiff No. 3 Prasanna Kumar Mazumdar are described as minors and are represented by their mother guardian Srimati Shubheswari Mazunidar plaintiff No. 4, who is since dead.
the suit is not main tainable and (2) (bat the notice was not valid. (4) In the plaint plaintiff No 1 Dulal Ch Majumdar. plaintiff No 2 Jogesh Ch. Mazumdar and plaintiff No. 3 Prasanna Kumar Mazumdar are described as minors and are represented by their mother guardian Srimati Shubheswari Mazunidar plaintiff No. 4, who is since dead. Reference is made to O. 32 R. 12, Civil Procedure Code by the court below The provisions of O. 32 R. 12 only are attracted if in the course of the trial the plaintiff who when the suit was a minor, attains majority and not to a case where the plaintiff is alleged to be major on the dale of filing of the suit and has wrongly described himself as a minor. Reliance is placed on the case of R. Sami Naidu v. Katha Goundan, reported in AIR 1940 Mad 522 In this case the suit was filed by the uncle in the name of his nephew In this case a Single Bench of the Madras High Court held as follows: "If the plaintiff was a major at The lime of the passing of the decree, then a fortiori the was major at the, time of filing the present suit. The suit was presumably filed by the uncle in the name of his nephew for the purpose of making it appear that Katha Goundan was very much a minor on the date of the decree of the Panchayat Court. If the plaintiff was a major when the suit was filed, then clearly no other person had a right to file the suit on his behalf; and the suit had therefore to be dismissed. O. 32 Rule 12 Civil Procedure Code does not contemplate the giving of an opportunity to a person who is not on record to continue in the suit." Thus the decision was based on the ground that the minor plaintiff cannot be treated to be a party to the suit and he cannot thus be allowed to continue the suit which he never filed. (5) The next case relied upon by the respondent is Ghasi v. Manga, reported in AIR 1932 Lah 322.
(5) The next case relied upon by the respondent is Ghasi v. Manga, reported in AIR 1932 Lah 322. In this case it is laid down that when a person is in fact a major but where a suit has been instituted on his behalf as a minor, the amendment of the plaint can be allowed only when it is a bona fide mistake. Thus this case does not lay down that in all cases where a major has filed a suit as a minor through the next friend, he cannot continue the suit and cannot ask for the amendment of the plaint. As against this there are a number of authorities to which I shall refer, which support the contention of the appellants that the suit cannot be thrown out merely on the ground that theplaintiff though major has sued as a minor. (6) Reference may be made to the case of Narayan Chandra v. Dulal Chandra reported in AIR 1927 Cal 477, where in a suit it was through a 'bona fide belief that the plaintiff was described as a minor and was represented by his mother as his next friend though he was a major, and it was held that inasmuch as the suit was instituted by the right person, though through another purporting to act as his next friend, The suit was maintainable. A Special Bench of the Allahabad High Court in the case of Wali Mohammad Khan v. Ishak Ali Khan, reported in AIR 1931 All 507 (SB) has also taken The same view. In this case their Lord ships held as follows; "Where a suit has been filed in the name of a plaintiff by his mother acting as guardian and next friend and describing him a minor, while in fact he was of age and the suit has been authorized by him, and is prosecuted by him in person, the suit cannot be thrown out on the technical ground that the plaint as originally filed described him as a minor under The guardianship of his mother. Defect in its form should be cured if it is due to a bona fide mistake " The Special Bench has clearly laid down that this is not an illegality. It is a irregularity which is cured by allowing the amendment of the plaint and the plaint cannot be said to be a nullity.
Defect in its form should be cured if it is due to a bona fide mistake " The Special Bench has clearly laid down that this is not an illegality. It is a irregularity which is cured by allowing the amendment of the plaint and the plaint cannot be said to be a nullity. (7) The Patna High Court in the case of Bibi Asghari v. Muhammad Kasim, reported in AIR 1951 Pat 328 has taken the view that If the plaintiff files a suit describing himself as a minor, though he was a major on the date of the institution of the suit, the suit cannot be regarded as one to which he was not a party. I am in complete agreement with the views expressed by the Allahabad, Patna and Calcutta High Courts. (8) It was then urged by the counsel for the respondent that there is a finding by the court below that the mistake was not bona fide and that being so, even under the principle enunciated in the Allahabad case the suit must fail. On the 18th January 1960 an application was filed by plaintiffs Nos. 1 and 2 stating therein that plaintiff No. 4 their mother died and her heirs were already on the record and a note should be made to that effect and further that they were major. The court made an order to that effect in the order sheet Plaintiff No. 1 Dulal Ch. Mazumdar examined himself in court. This shows that the case was prosecuted by plaintiffs Nos. 1 and 2. The trial court permitted the plaintiff by an order of the 8th January 1960 to prosecute the suit as major. The order of the trial court was passed on the 31st August, 1960. It cannot, there fore, be said that the plaintiffs Nos. 1 and 2 as they were described as minors, were no party to the suit and that the plaint was not properly presented. Even if the plaint is said to have been not properly presented. The plaintiffs Nos. 1 and 2 were parties to the suit and the court could have allowed the amendment of the plaint at any stage of the proceedings. It is not a fatal defect which will invalidate the entire suit. The lower appellate court thus was wrong in holding that the suit must fail on that ground.
The plaintiffs Nos. 1 and 2 were parties to the suit and the court could have allowed the amendment of the plaint at any stage of the proceedings. It is not a fatal defect which will invalidate the entire suit. The lower appellate court thus was wrong in holding that the suit must fail on that ground. (9) In my opinion the court below also was not right with regard to the second point Merely because the notice was issued under the instruction of the mother by the counsel, it does not mean that the notice was not a notice by the plaintiffs. In the notice it is stated that the said notice was sent under instructions from Jogesh Chandra Majumdar. minor, Dulal Chandra Majumdar. minor. Prasanna Kumar Majumdar, minor and Musst Subheswari Majumdar for self and as mother guardian of the above minors of village Uparhali. This statement in the notice clearly shows that the notice was on behalf of the plaintiffs Nos. 1, 2 and 3. Merely because the mother instructed the counsel on behalf of the minors, it cannot be said that the notice was not on behalf of the plaintiffs That being so, the notice was a valid notice. As the appeal was allowed by the court below on these two points alone, I allow this appeal, set aside the decision of the court below and decree the suit with costs. Appeal allowed