N. H. BHATT, J. ( 1 ) THIS is an application by Champak Vashram with the prayer that he be allowed to proceed with appeal and that the title of the appeal be allowed to be amended so as to read him hence forth as a person appealing on his own right he having attained the majority on 27-12-1975. In order to understand a big storm in a small tea cup raised in this Civil Application the basic facts of this litigation are required to be closely noted with a sense of anguish in our minds that poor litigants are not properly advised or guided at proper stages in the lower courts and it is because of lack of such diligence and vigilance on the part of the persons advising them this sort of unhappy situation develops to the detriment of the litigants. The facts which we narrate below will amply bear out this. ( 2 ) THERE was filed a civil suit in the court of the Civil Judge (S. D.) Rajkot being the special civil suit No. 37 of 1971. The suit had come to be filed in the year 1971 in the name of the present applicant who was then minor and therefore by his next friend and mother Bai Santok Vashram. The suit was filed for partition of the lands in which said Champak claimed to have his share by reason of his being a member of the joint Hindu family. There was one Chhana Kala a resident of Rajkot owning these disputed properties. Said Chhana had two sons namely Vashram and Pola. Vashram died as back as in the year 1944 leaving behind him his widow Bai Santok and two daughters Bai Rambha and Bai Kunvar. Said Bai Kunvar and Bai Rambha were impleaded as the defendants Nos. 3 and 4 in the suit and they are the respondents Nos. 4 and 5 in the present first appeal. One another son of Chhana also was there named Narshi but he had died in the year 1926 leaving no issues or widow and so for our purposes he is to be left out of consideration. 3 and 4 in the suit and they are the respondents Nos. 4 and 5 in the present first appeal. One another son of Chhana also was there named Narshi but he had died in the year 1926 leaving no issues or widow and so for our purposes he is to be left out of consideration. Said Pola the brother of deceased Vashram also had died on 3-4-1957 leaving behind him his widow Ratanbai the respondent No. 2 before us a son Dharamsi the defendant No. 1 in the suit and the respondent No. 1 before us and a daughter Bai Mani the defendant No. 2 in the suit and the respondent No. 3 before us and she having expired during the pendency of this appeal her heirs the respondents Nos. 3/1 to 3/5 were brought on the record. Bai Santok had started some litigation for getting her share in the property left by her husband as a Member of the joint Hindu family. The only right that was recognised in that litigation was her right of maintenance. Now on 7-4-1970 Bai Santok adopted minor Champak the son of her daughter Rambha as her son and the legal effect of it is that Champak is considered as the son of Vashram and therefore entitled to the properties left by Vashram in his capacity as a member of the joint Hindu family of which there were two branches one branch of Vashram and the other branch of Pola. After having adopted a son the above mentioned suit No. 37 of 1971 came to be filed on his behalf by his adoptive mother Bai Santok and that said suit had come to be hotly contested. The suit went on upto the later half of the Bar 1975. During the pendency of that suit the contesting defendants had given an application ex. 154 dated 23-7-15 alleging that minor Champak had already attained majority and so Bai Santok had no right to prosecute the suit on his behalf. A reply to that application was also filed by Bai Santok acting as the next friend of her adoptive 60 It was at that stage cleared that minor Champak was to attain majority on 27-12-75. Realising this factual aspect the said application ex. 154 was not pressed by the defendants. A reply to that application was also filed by Bai Santok acting as the next friend of her adoptive 60 It was at that stage cleared that minor Champak was to attain majority on 27-12-75. Realising this factual aspect the said application ex. 154 was not pressed by the defendants. By that time the recording of evidence had been concluded and only thing that remained to be done was the hearing of arguments and then pronouncement of the judgment. By the time the judgment came to be pronounced this Champak had already attained majority but no attempt was made to bring him on the record as such by recourse to Order 32 Rule 12 of the C. P. C. and the learned trial Judge by his judgment dismissed the suit. Now the present appeal No. 650 of 1978 came to be presented but the curious aspect of it is this that it came to be presented by Bai Santok as the next friend of Champak who it is conceded before us had already attained majority on the day the judgment had come to be pronounced by the learned trial Judge and therefore obviously on the day the appeal had come to be presented. Along with the presentation of the memo of appeal an application was also filed for allowing the appeal to be filed and prosecuted as an indigent person and that application also was hotly contested but ultimately it was allowed by this court and that order has become final. Then the present application No. 356 of 1978 had come to be presented on 2-2-1978. This application had come to be granted by the Division Bench of this court on 22-2-78 and thereafter the prayer for allowing prosecution of the appeal as an indigent person was granted despite serious objections raised on behalf of the present respondents Nos. 1 to 3 on the ground that the appeal itself was not competently presented and filed. The learned Judges of this court who decided the civil application No. 683 of 1983 (DHARAMSHI POTABHAI V. CHAMPAKLAL VASHRAM 24 (2) G. L. R. 1280) left the question of maintainability of this present appeal open. 1 to 3 on the ground that the appeal itself was not competently presented and filed. The learned Judges of this court who decided the civil application No. 683 of 1983 (DHARAMSHI POTABHAI V. CHAMPAKLAL VASHRAM 24 (2) G. L. R. 1280) left the question of maintainability of this present appeal open. The words are: So far as the question of maintainability of the present appeal is concerned it raises in its turn further question whether the minor plaintiff who had become major could legally file the appeal through his erstwhile guardian ad-litem and whether correction of the memo of appeal as per the order of this court on 22 in civil application No 356 of 1978 had any effect on the filing of the present appeal within the prescribed period of limitation. On these questions we do not express any opinion for the present and the said questions are kept open as they can be more effectively dealt with at the time of final hearing of the main appeal. 3 When the appeal was taken up by us for final hearing the question of maintainability of the appeal was taken up and when earlier order passed by the Division Bench of this court on this application No. 356 of 1978 is there to put an answer to the contention the learned counsel Mr. Mehta appearing for Mr. Kothari submitted that this order having been passed ex-parte behind their back would not bind them and this decision could not be flung in their face to shut them out from raising the contention about the maintainability of the appeal. The perusal of the record showed that this order allowing C. A. 356 of 1978 had come to be passed ex-parte. No rule was issued on that civil application. No arguments appear to have been advanced and the matter has been decided as if no lis existed between the parties. The perusal of the record showed that this order allowing C. A. 356 of 1978 had come to be passed ex-parte. No rule was issued on that civil application. No arguments appear to have been advanced and the matter has been decided as if no lis existed between the parties. It therefore occurred to us that the order having been passed ex-parte and behind the back of the respondents as they contended that order passed on this civil application on 22-2-78 should be treated as nonest and we had therefore ordered that the said application No. 356 of 1978 should be heard by us afresh ant decide along with it the question of maintainability of the appeal also because rehearing of this application has arisen on the preliminary objection to the maintainability of the appeal. 4 The above narration would at once show that though at the stage of the trial it was specifically made known to this plaintiffs guardian that her authority to act for the minor was limited to the period up to 27-12-75 nothing appears to have been done and the things were taken complacently by her and also by her advocate in the trial court. With the passage of time this lady who appears to be aged and also illiterate as we can see from the thumb impressions on the various documents put on the record of this case lost sight of this legal aspect and presented the appeal and in the title of the memo of appeal it is mentioned as follows :- Champaklal vashram being minor by his next friend and mother Add. Bhanu Kalavadi Sheri Bedipara Rajkot. This appeal was presented in this court on 9-9-76 and along with it were presented two applications one for permitting the appeal to be prosecuted in forma pauperism and the other for condonation of delay of nine days the delay occurring because the appeal filed by an indigent person is required to be filed within 60 days whereas the appeal to be filed by a non-indigent person can be filed within 90 days. In this case ultimately the court fees have been paid and therefore the question of limitation loses all importance. So the question of the appeal being barred by limitation would not arise. In this case ultimately the court fees have been paid and therefore the question of limitation loses all importance. So the question of the appeal being barred by limitation would not arise. ( 3 ) INITIALLY the permission to prosecute the appeal in forma pauperis was granted and so was granted the application for condonation of delay but subsequently the respondents Nos. 1 to 3 pointed out to the court that as the said order of leave to prosecute the appeal in forma pauperis was obtained by fraud the court fees have been paid. Though the learned advocates for the respondents Nos. 1 to 3 agitated before us that the question of limitation still would survive in our view once the Court fees are paid and they are treated as paid on the memo of appeal as presented an the day the memo was presented the question of limitation would not arise. ( 4 ) THE serious question very vigorously put forward before us by Mr. Mehta appearing for Mr. Kothari is that this appeal cannot be said to have been an appeal in accordance with law. It is an appeal presented by a person having no lis because an appeal can be presented not by any person like a plaintiff of a suit but can be presented only by a party in the suit if he is aggrieved by the judgment or by a person who is not a party but who is aggrieved by the judgment if he seeks and gets the leave of the court to prefer an appeal against that judgment. We accept certain propositions of law canvassed by Mr. Mehta namely that the appeal can be preferred only by those two categories of persons and not by others but we do not subscribe to his view that any person can file a suit. It is only that person who has got a right to file the suit that can do so. So this distinction referred to by the Supreme Court in a different context in the judgment of the Supreme Court cannot be pressed herein. In the case of SMT. It is only that person who has got a right to file the suit that can do so. So this distinction referred to by the Supreme Court in a different context in the judgment of the Supreme Court cannot be pressed herein. In the case of SMT. GANGA BAI V. VIJAY KUMAR A. I. R. 1974 S. C. 1126 it has been laid down that :"there is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute one may at ones peril bring a suit of ones choice. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. "this particular observation of the Supreme Court is there to explain the distinction between a right to appeal which is a creature of statute as contradicted with a right to file a suit which also is limited to a person referred to under sec. 9 of the Civil Procedure Code provided he has got a cause of action and a remedy to be sought. The question here is: Can this Champak Vashram on whose behalf and for whose benefit his mother had preferred an appeal without her being an authorised agent as defined in the Civil Procedure Code be allowed to prosecute the appeal for all purposes or whether said Champak Vashram pleading his bona fide mistake or his ignorance of law can now come forth and request this court that he be permitted to sign this memo of appeal for the purpose of treating the appeal as having been filed by himself. There cannot be any controversy in our view though Mr. Mehta did not agree that the appeal was filed for Champaks benefit. It was he who was the appellant but it appeared that both he and his mother laboured under the impression that the original authority continued and therefore the appeal was presented by the mother for and on behalf of the son. We would not say that this is technically right. We would go to the extent of saying that it is legally erroneous also. The question that however. We would not say that this is technically right. We would go to the extent of saying that it is legally erroneous also. The question that however. arises for our consideration is whether this sort of mistake can be visited with the dire consequences of treating the appeal as not having been filed at all. The submission of the respondents is to that effect. We shall examine the various sub missions made by Mr. Mehta in that regard. ( 5 ) THE burden of Mr. Mehtas submission was that a next friend becomes functus officio the day the minor litigating plaintiff attains majority. In support of his submission he placed heavy reliance on the judgment of the Bombay High Court in the case of RATANCHAND V. JASRAJ KASTURCHAND A. I. R. 1940 BOMBAY S8. It is the judgment of the Division Bench and if there is any ratio of the type canvassed before us is there it would bind us it being the prereorganisation of state pronouncement or the judgment of the Bombay High Court and therefore law for us. The question before the Division Bench of the Bombay High Court was about the costs of the defendants. The question was as to whether the minor should be saddled with the costs of the defendants or the next friend should be. It was in this context that the ratio has been laid down. It has been stated that :" So long as the plaintiff is a minor there must be a next friend shown on the record who is answerable for costs; but as soon as the minor attains his majority the next friend is functus officio and prima facie his liability ceases. The former minor plaintiff is bound under 0- 32 R. 12 to elect whether he will proceed with the suit or not. If he elects to proceed with the suit the title to the record is altered by showing him as a major plaintiff and he thereupon becomes liable for the costs as from the commencement of the suit and the defendant is therefore placed is exactly the same position as he would have been in if the plaintiff had never been a minor. If the minor elects not to proceed with the suit he can only do so on submitting to an order to pay the costs of the defendant and also the costs of the next friend. There also the defendant is placed exactly in the same position as he would have been in if the plaintiff hat never been a minor. . . "so this judgment is confined to the case where the liability for costs of the defendent is to be considered. ( 6 ) MR. Mehtas further submission by Reference to Order 41 Rule I of the C. P. C. was that under that provision every appeal could be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court. His submission therefore was that this memorandum presented to this court vas signed neither by the appellant nor by his advocate and therefore also it should be held that there is no memorandum of appeal before this High Court and therefore there is no appeal also here and on this ground he wanted us to treat this appeal as nonest and therefore liable to be dismissed. Referring to Halsburys Laws of England 4 Edition Vol. 24 at page 476 he reiterated his submission that where an infant who is the sole plaintiff attains full age while the proceedings were pending it was open to that minor to elect to continue the proceedings or not and if he elected to continue the proceedings they would be conducted in his own name and he would be liable for the costs of the defendants from the commencement. It is further mentioned there that if he elects to discontinue them he may obtain an order to dismiss them on payment of the costs from the commencement or he may take no steps in which case the defendant may apply to dismiss the proceedings but cannot make the infant pay the costs of them. This observation in the Halsburys Laws of England is almost in peri materia with the provisions of Order 32 Rule 5 of the C. P. C. with this addition that there is reference to the defendants application to the court to dismiss the proceedings which provision is not there in the Civil Procedure Code. This observation in the Halsburys Laws of England is almost in peri materia with the provisions of Order 32 Rule 5 of the C. P. C. with this addition that there is reference to the defendants application to the court to dismiss the proceedings which provision is not there in the Civil Procedure Code. However even though there is no such provision at the same time there is no prohibition also and a defendant put in such a position can certainly request the court to dismiss the suit as not being prosecuted properly by a proper person. This however does not come in the way of the applicant ( 7 ) MR. Mehta had also invited our attention to three more authorities pertaining to the stamp duty where an authority under the Stamp Act once having passed a particular order had become functus officio and was thereafter having no authority to refuse or review its decision. To us it appears that this analogical reference is uncalled for because in our view this is a case not of a person becoming functus officio but this is a case of a wrong person presenting the appeal in terms of Order 1 Rule 10 of the C. P. C. Mr. Mehta had also urged before us that there was a basic difference between a suit and an appeal and pressed into service before us the judgment of the Allahabad High Court in the case of RAJ BEHARI LAL and ORS. V. MAHABIR PRASAD and ORS A. I. R. 1956 ALLAHABAD 310. There it was held that a minor defendant against whom a decree was passed would validly institute an appeal through a person other than the guardian ad litem appointed by the trial court but there also it has been added that the appellate court may on sufficient cause being shown allow an appeal to be filed on behalf of the minor by a person other than the guardin ad-litem appointed by the trial court by removing such a guardian and appointing such other person as the guardian of the minor from the date of the institution of the appeal In our view this judgment does not concern itself with the subject matter before us To us it appears that we should recall to our mind the wellknown proverb that procedure is the hand maid of justice and not its mistress. Procedural irregularity or lapses here or there cannot be permitted to subvert the substantial cause of justice unless it could be shown that because of this irregularity the other side has been put into an irreversibly adverse position. Order 1 Rule 10 of the C. P. C. is reproduced below:"10 (1) Where a suit has been instituted in the name of the wrong person as plaintiff. . . the court may at any stage of the suit if satisfied that the suit has been instituted through a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to do order any other person to be substituted or added as plaintiff upon such terms as the court thinks just. "obviously the above quoted provision of law refers to the suit and not to an appeal but sec. 107 (2) of the Civil Procedure Code provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on courts of original jurisdiction in respect of suits instituted therein. If in respect of a suit instituted in the trial court a minor person files a suit through his friend so called under the wrong impression that the alleged plaintiff is continuing to be a minor the court can certainly allow that wrong name or wrong description of the plaintiff to be rectified. In the case of TAQUI. LAN V. OBAIDULLA 21 I. L. R. CALCUTTA 866 the Division Bench of the Calcutta High Court had an identical case to be dealt with. There a suit was instituted by a person alleging himself to be a minor and the suit was brought through a next friend. Later on it was found that the plaintiff was not at the date of the institution of the suit in fact a minor and it was insisted that the court should dismiss the suit. The court negatived that prayer by holding that it was not obligatory for the court to dismiss the suit as the defendant could be fully indemnified by the payment of his costs. The court negatived that prayer by holding that it was not obligatory for the court to dismiss the suit as the defendant could be fully indemnified by the payment of his costs. The High Court suggested that the proper course in such a situation was for the defendant to apply to have the plaint taken off the file or amended but even if this prayer was not acceded to by the plaintiff the court should not dismiss the matter but should treat the name of the next friend as surplusage and should allow the suit to proceed. This case was followed by the Division Bench of the Madras High Court in the case of SHANMUGA CHETTY V. C. K. NARAYANA AYYAR 40 I. L. R. MADRAS 743. There the plaintiff was described in the plaint as a minor but had really attained majority some four days before the plaint was filed by his next friend before the court. Bona file belief was found about the alleged continuance of minority and the Division Bench of the Madras High Court ruled that such a suit ought not to be dismissed but the plaint should be returned for presentation after making the necessary amendments by striking off the description of the plaintiff as a minor suing through his next friend and making other consequential alterations in the plaint. ( 8 ) MR. Mehta submitted that provisions pertaining to a civil suit cannot apply to the presentation of a memo of appeal for which an elaborate provision has been made in Order 41 Rules 1 2 and 3 of the C. P. C. It is difficult to agree with the submission made by Mr. Mehta. There is no provision like Order 1 Rule 10 (1) in Order 41 of the Civil Procedure Code and so by recourse to sec. 107 (2) of the Civil Procedure Code the principle of Order 1 Rule 10 can be invoked while dealing with such an erroneous memorandum of appeal presented to the court. We reiterate that the appeal is by Champak Vashram but through inadvertance or ignorance both Champak and his mother thought perhaps the earlier application exhibit 154 having not brought to their personal notice that the old position continued but mother certainly acted for the son. There was no misgiving about who was presenting the appeal and against what. We reiterate that the appeal is by Champak Vashram but through inadvertance or ignorance both Champak and his mother thought perhaps the earlier application exhibit 154 having not brought to their personal notice that the old position continued but mother certainly acted for the son. There was no misgiving about who was presenting the appeal and against what. It was Champaks appeal filed in the court through the hand of his mother who because of her illiteracy could not know the nice requirement of law that soon on the attainment of majority a minor himself can be duly described on the record of the case. We cannot miss one point here. If we allow this mistake which we held to be bona fide to be rectified no prejudice is likely to be caused to the other side. It was half heartedly stated without any specific details that during the pendency of this appeal right from 1978 to 1983 some changes might have been effected in respect of some parcels of the property. It is nobodys say much less put on the record that because of the clear cut notion that the appeal was nonest such transactions had been entered into by the defendants and therefore prejudice was likely to be occasioned to the respondents Nos. 1 2 and 3. ( 9 ) IN above view of the matter we see no difficulty whatsoever in granting the Civil Application No. 356 of 1978 and accordingly we allow the correction of the description of the plaintiff in the memorandum of appeal. The Civil Application is accordingly allowed but with this direction that the applicant Champak Vashram shall pay Rs. 100. 00 as the costs of this Civil Application to the defendants respondents Nos. 1 2 and 3 in one set. ( 10 ) THIS brings us to the main first appeal. In this case both the sides have amended their pleadings considerably. The dispute appears to be far deep rooted and unless a fresh trial ensues no justice in accordance with law can be meted out to the parties. Keeping in tact the right of Mr. D. L. Kothari to move the Supreme Court against our order below the Civil Application No 356 of 1978 he agrees that the appeal should be allowed and the matter may be remanded to the trial court. With the concurrance of Mr. Keeping in tact the right of Mr. D. L. Kothari to move the Supreme Court against our order below the Civil Application No 356 of 1978 he agrees that the appeal should be allowed and the matter may be remanded to the trial court. With the concurrance of Mr. J. R. Nanavati the whole matter goes back to the learned trial Judge who will permit both the sides to get their pleadings amended as per the Civil Application granted by us and then permit the parties to lead whatever evidence on new points and then decide the matter afresh on all the points including the question of adoption So technically speaking both the appeal and the cross-objections are allowed with no order as to costs. It is also clarified that on the points on which evidence is already adduced the parties are not to be permitted to lead further evidence unless they make out a case for additional evidence ( 11 ) THE result is that the first appeal and the cross-objections are allowed with no order as to costs. The whole matter is remanded to the trial court for decision in accordance with law. ( 12 ) AT the request of Mr. D. L. Kothari further proceedings before the trial court shall not be started for the period of six weeks from today as he says he wants to move the Honble Supreme Court against our order on the Civil Application No. 356 of 1978. However if further stay is not granted either by us or by the Supreme Court this whole litigation of 1971 shall be peremptorily taken on hand by the trial court and be decided as early as possible by hearing the matter day-to-day. ( 13 ) THE respondent No. 1 who is present in the court and identified by Mr. D. L. Kothari undertakes to this court that during this period of six weeks if he enters into any document with any party in respect of this property he shall invariably mention in that document that this particular litigation between the parties is pending in the court. If ally document is so executed an intimation is to be given to the learned advocate of the appellant at Rajkot. The undertaking shall be filed within a week from today. .