NATHU ALIAS DADU GIGA v. STATE — 1971 DIGILAW 47 (GUJ)

A. A. DAVE, J. ( 1 ) THIS appeal is directed against the judgment and decree of the learned District Judge Rajkot dismissing civil appeal No. 59 of 1960 with costs. ( 2 ) THE facts giving rise to this appeal briefly stated are as under :- The plaintiffs including one Mohmad Dada filed regular civil suit No. 275 of 1957 against the State of Bombay and three others for a declaration that they were illegally dispossessed of the suit land by the State and for a declaration that occupancy certificates issued to the other tenants were illegal and for possession of the suit land from them. The suit was filed on 25-4-1957. It was contested by the defendants. On 31-3-1960 the plaintiff No. 2 Mohmad Dada gave an application Ex. 131 to withdraw from the suit. On 13-4-1960 plaintiff No. 2 gave application Ex. 134 stating that he was not ready and willing to continue as the next friend of plaintiff No. 1 Nathu alias Dada Giga who was of unsound mind. On 14-4-1960 plaintiffs Nos. 3 4 and 5 Umar Giga Rehman Giga and Manji Giga gave application Ex. 135 stating that they had cancelled the power of attorney given by them to plaintiff No. 2 Mohmed Dada. Before any order was passed by the Court on the above applications these applications were withdrawn and the plaintiffs submitted an application at Ex. 144 on 25-4-1960 to withdraw the suit and on the same day the learned Judge disposed of the suit as having been withdrawn by the plaintiffs. Being dissatisfied with that order the plaintiffs except Mohmed Dada preferred an appeal in the District Court which was dismissed. The plaintiffs have therefore preferred the present appeal to this Court. ( 3 ) MR. D. U. Shah learned advocate for the appellants raised the several contentions:- (1) He submitted that in the instant case when plaintiffs Nos. 3 4 and 5 gave the application revoking the authority given to plaintiff No. 2 on their behalf that revocation became effective the moment the application was given to the Court and the power or authority given to plaintiff No. 2 cannot be revived by mere withdrawal of the said application. He therefore urged that when the suit was withdrawn by plaintiff No. 2 on behalf of himself and other plaintiffs the act of withdrawal on his part was illegal and unauthorised. He therefore urged that when the suit was withdrawn by plaintiff No. 2 on behalf of himself and other plaintiffs the act of withdrawal on his part was illegal and unauthorised. (2) The Court should not have permitted plaintiff No. 2 to withdraw the suit without satisfying itself whether the interest of plaintiff No. 1 who was of unsound mind was protected by such withdrawal. He also contended that the original power of attorney in favour of plaintiff No. 2 did not specifically authorise him to withdraw the suit and the withdrawal therefore was bad in law; that the Court should have appointed another guardian; for plaintiff No. 1 who was a lunatic and proceeded with the suit. Mr. Shah made a grievance that even though the application did not contain a statement specifically mentioning as to what was the technical ground for withdrawing the same the learned Judge allowed the plaintiffs to withdraw the suit as a result the interest of other plaintiffs was jeopardised. He therefore urged that in the interest of justice the suit should be restored on file. In support of his first contention that once the authority was revoked it cannot be revived by mere withdrawal of the application intimating to the Court that the authority was revoked he relied on sec. 201 of the Indian Contract Act which says -AN agency is terminated by the principal revoking his authority or by the agent renouncing the business of the agency or by the business of the agency being completed or by either the principal or agent dying or becoming of unsound mind or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors. RELYING on this section Mr. Shah urged that the agency in favour of plaintiff No. 2 came to an end the moment the plaintiffs Nos. 3 4 and 5 gave an application to the Court informing it of their intention to terminate the power of attorney executed by them in favour of plaintiff No. 2. Me urged that mere withdrawal of the said application cannot revive the authority which was revoked unequivocally. I need not consider the legal aspects of this case for the simple reason that plaintiffs Nos. 3 4 and 5 after this application had signed a separate vakalatnama in favour of advocate Mr. Me urged that mere withdrawal of the said application cannot revive the authority which was revoked unequivocally. I need not consider the legal aspects of this case for the simple reason that plaintiffs Nos. 3 4 and 5 after this application had signed a separate vakalatnama in favour of advocate Mr. Sinroja on 16th April 1960 and a fresh vakalatnama was filed in Court on their behalf. The final application for withdrawal of the suit was signed by advocate Mr. Sinroja on behalf of all the three plaintiffs. Therefore the said application for withdrawal of the suit cannot be said to have been given by plaintiff No. 2 alone but it can as well be said to have been signed by plaintiffs Nos. 3 4 and 5 through their advocate Mr. Sinroja. Therefore even assuming for the arguments sake that the authority of plaintiff No. 2 to represent plaintiffs Nos. 3 4 and 5 came to an end when the application was given by them in Court informing it that they had revoked the authority given by them in favour of plaintiff No. 2 Mr. Shah would have been on a surer ground if a fresh vakalatnama was not given by plaintiffs Nos. 3 4 and 5 in favour of advocate Mr. Sinroja. In view of this state of affairs the submission made by Mr. Shah is of academic interest only and I need not dilate on it further. The result is that the final application for withdrawal of the suit was signed not only by plaintiff No. 2 on behalf of himself and other plaintiffs but it was also signed by Mr. Sinroja as an advocate representing plaintiffs Nos. 3 4 and 5. In the light of these facts it cannot be said that the application for withdrawal of the suit was not tenable and that it was not properly withdrawn as alleged by the learned Advocate for the appellants. ( 4 ) MR. Shah next urged that in the instant case the plaintiff No. I was a lunatic and he was represented by plaintiff No. 2 as his guardian. Plaintiff No. 2 could not withdraw the suit unless the Court was satisfied that withdrawal of the suit was in the interest of the lunatic. ( 4 ) MR. Shah next urged that in the instant case the plaintiff No. I was a lunatic and he was represented by plaintiff No. 2 as his guardian. Plaintiff No. 2 could not withdraw the suit unless the Court was satisfied that withdrawal of the suit was in the interest of the lunatic. He therefore urged that the withdrawal of the suit by plaintiff No. 2 was not legal and in the interest of justice the Court should permit the next friend of plaintiff No. 2 to proceed with the suit. In this connection Mr. Shah referred to Order 23 Rule 1 and Order 32 Rule 7 of the Code of Civil Procedure. Order 23 Rule 1 states (1) At any time after the institution of a suit the plaintiff may as against all or any of the defendants withdraw his suit or abandon part of his claim. Sub-rule (2) states (2) Where the Court is satisfied (A) that a suit must fail by reason of some formal defect or (b) that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claimit may on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or abandon such part of a claim with liberty to institute a fresh suit in respect of the subject matter of such suit or such part of a claim. Sub-rule (4) states (4) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to withdraw without the consents of the others. MR. Shah urged that in the instant case plaintiffs Nos. 3 4 and 5 had not given their consent to the withdrawal of the suit by plaintiff No. 2 and therefore withdrawal of the suit was bad in law. This argument also loses its force in view of the fact that plaintiffs Nos. 3 4 and 5 had already signed a vakalatnama of advocate Mr. Sinroja who had signed the withdrawal pursis given by plaintiff No. 2 on behalf of himself and other plaintiffs. As the suit was withdrawn unconditionally permission of the Court in fact was not necessary. Therefore in my opinion provisions of Order 23 Rule 1 would not apply to the facts of this case. Sinroja who had signed the withdrawal pursis given by plaintiff No. 2 on behalf of himself and other plaintiffs. As the suit was withdrawn unconditionally permission of the Court in fact was not necessary. Therefore in my opinion provisions of Order 23 Rule 1 would not apply to the facts of this case. There is nothing in this rule which enjoins on the Court to make inquiry whether interest of the minor is protected or not before the plaintiff is allowed to withdraw the suit. Mr. Shah however relying on the analogy of Order 32 Rule 7 of the Code of Civil Procedure submitted that whenever a minor is involved it is the duty of the Court to find out whether the interest of the minor would be protected by permitting the plaintiff to withdraw the suit. In my opinion Rule 7 of Order 32 could have no application to the facts of this case. Under that rule next friend or guardian of the minor for the suit cannot enter into any agreement or compromise on behalf of a minor with reference to the suit without leave of the Court. If such next friend or guardian entered into any agreement or compromise with regard to the subject matter of the suit on behalf of the minor the Court has to satisfy itself that such an agreement or compromise was in the interest of a minor. No such provision is found in Order 23 Rule 1. Therefore it is difficult to import provisions of Order 32 Rule 7 into Order 23 Rule 1. Mr. Shah however urged that the Court as a Court of equity was bound to protect the interest of the minor or lunatic and that in every case provisions of the Civil Procedure Code may not be specifically attracted. He referred to several decisions to which I will presently refer. In the case of Doraswami Pillai v. Thungasami Pillai reported at 27 I. L. R. Madras 377 it was observed:-A suit relating to the estate or person of an infact and for his benefit has the effect of making him a ward of Court and no act can be done affecting the property of the minor unless under the express or implied direction of the Court itself. IN that case the suit was conducted on behalf of a minor and was withdrawn without leave being asked for or given to bring another suit. The order passed on the petition for withdrawal was set aside by the High Court on revision and the suit restored to file of the lower Court for disposal according to law. The facts of this case disclosed that the junior Vakil who appeared on behalf of the plaintiff had given a withdrawal pursis keeping the next friend of the minor in the dark In the application for review of the order passed by the Court permitting the plaintiff to withdraw the suit the next friend was examined in Court and she had stated that she was not aware of the contents of the vakilpatra which permitted the lawyer to withdraw the suit. She even did not know that she had put her thumb mark on the petition which was for withdrawal of the suit. In the light of the circumstances which were brought out in that case the Madras High Court had observed that a suit relating to the estate or person of an infant and for his benefit has the effect of making him a ward of Court. Withdrawal of the suit in that case was in pursuance of the agreement or compromise entered into with the defendant without leave of the Court. Thus if a withdrawal is in pursuance of an agreement entered into with the other side Courts permission would be necessary because unless the Court was satisfied that the agreement or compromise was in the interest of the minor no such compromise could be sanctioned. Therefore if the withdrawal was in pursuance of an agreement or compromise with the other side and if the withdrawal was done without the Court sanctioning the compromise as being in the interest of the minor such withdrawal naturally would be liable to be set aside on the ground that the withdrawal was not in the best interest of the minor. The facts of the Madras case therefore cannot be said to be applicable to the instant case. The facts of the Madras case therefore cannot be said to be applicable to the instant case. Similarly the case of Ram Saruplal v. Shah Latafat Hossein reported at 29 I. L. R. Calcutta 735 will not help the appellants though the ratio of that case apparently does help them where it was observed that:-WHEN the next friend of a minor plaintiff withdraws from the suit it is open to the minor through another next friend to have the suit reopened on review on the ground that the former next friend though guilty of no fraudulent conduct was grossly negligent of the minors interest in withdrawing from the suit. IN the course of the judgment Their Lordships of the Calcutta High Court observed: -. . A minor is entitled to invoke the assistance of a Court of equity either by au application for review of judgment or by separate suit. RELYING on these observations Mr. Shah urged that in the instant case the plaintiffs application did not disclose specific reason for withdrawing the suit. He submitted that the suit which had proceeded for a pretty long time in Court was withdrawn by plaintiff No. 2 on behalf of plaintiff No. 1 for insufficient reasons. It is true that if a minor from material on record satisfied the Court that the suit was withdrawn by his next friend as a result of fraud and collusion or due to gross negligence the Court may interfere and restore the suit to the file. But in such a case the remedy which the minor could avail of would be by way of review of judgment or by a separate suit. If application for review of judgment was given or a separate suit was filed some evidence could have been led showing that the next friend was grossly negligent or he had fraudulently or in collusion with the other side had withdrawn the suit. In the absence of any such evidence showing that the minor was in any way prejudiced by the withdrawal of the suit or any circumstances on record indicating that the suit was withdrawn by the next friend in collusion with the other side or due to gross negligence it would not be proper to restore the suit on file merely because the minor or a lunatic was a party to the suit. Admittedly no such review application was filed on behalf of the minor nor a separate suit was filed and straightway an appeal to the District Court has filed against the order of the Court permitting the plaintiffs to withdraw the suit. Thus in the absence of any material on record it would not be proper to set aside the order passed by the lower Courts and restore the suit on file. The other two cases referred to by the learned advocate for the appellants reported at 47 Indian Appeals page 89 and I. L. R. 13 Bombay 137 would not apply to the present case because in those cases the question was whether an agreement entered into on behalf of a minor was for the benefit of the minor or not. No such question being involved in the present case I need not consider them in details. As the learned advocate for the appellants has been unable to bring out any cogent material showing that the minors interest was prejudiced by the withdrawal of the suit I see no reason to interfere with the orders passed by the Courts below. ( 5 ) IN the results the appeal fails and is dismissed. In view of the facts of this case no other as to costs of this appeal. .