Research › Search › Judgment

Madhya Pradesh High Court · body

2000 DIGILAW 272 (MP)

BAJRANGLAL v. UMESH KUMAR

2000-03-15

DIPAK MISRA

body2000
DEEPAK MISRA, J. ( 1 ) CHALLENGE is to the order dated 31-10-1994 passed by the learned 1st Additional District Judge, Bilaspur rejecting the application preferred under Order 32 Rule 12 of the Code of Civil Procedure (in short 'the Code') by the defendant No. 1. ( 2 ) THE facts as have been uncurtained are that the non-applicant No. 1 as plaintiff filed a civil suit No. 9-A/86 in the Court of First Additional District Judge, Bilaspur being represented by his maternal uncle, Harishankar Joshi. The suit was for declaration of right, title interest and permanent injunction. After the plaintiff became major the defendant No. 1 filed an application under Order 32 Rule 12 of 'the Code' requiring the plaintiff to make an election either to proceed with the suit or abandon the same. The said application was resisted by the guardian and the learned trial Judge rejected the application on the ground that it was open to the plaintiff to make a choice. ( 3 ) MR. Sanjay Agrawal, learned counsel for the petitioner has drawn the attention of this Court to Order 32 Rule 12 of the CPC to highlight that when a minor plaintiff becomes major he has to make an election whether to contest the suit or abandon the same and if he chooses to continue with the suit he has to apply for discharging of his next friend. Mr. Agrawal has placed reliance on the decisions rendered in the cases of Bhanu Pratap Singh v. Ram Sahai, 1981, MPWN 246 (SN), Ishar Singh v. Bakshish Singh AIR 1929 Lahore 555 (2) and Vidya Wati v. Hans Raj AIR 1993 Delhi 187. Resisting the aforesaid submission Mr. Hemant Namdeo, learned counsel for the non-applicants has supported the order passed by the learned trial Judge. ( 4 ) TO appreciate the rival submissions raised at the Bar it is apposite to refer to Order 32 Rule 12 of the Code of Civil Procedure. It reads as under :"order 32 Rule 12- (1) A minor plaintiff or a minor not a party to suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application. (2) Whether he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name. (2) Whether he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name. (3) The title of the suit or application shall, in such a case be corrected so as to read henceforth thus :- "a. B. , late a minor, by C. D. , his next friend, but now having attained majority. " (4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party which may have been paid by his next friend. (5) Any application under this rule may be ex parte : but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend. "on a bare perusal of the aforesaid provision it becomes quite vivid that after the minor plaintiff becomes a major he has to make an election to contest the suit or abandon the same. If he claims to proceed with the suit he has to pray for discharging of the next friend and to seek leave to proceed on his own. ( 5 ) IN the case of Ishar Singh (supra) it has been held as under :"where during the pendency of an appeal on behalf of a minor it was discovered that the minor had attained majority after the institution of the appeal and the Court instead of calling upon the quondam minor (who was present in Court) to elect whether he intended to proceed with the appeal or not dismissed it 'for want of prosecution'. " (Quoted from the placitum)In the case of Bhanu Pratap Singh ( 1981 MPWN 246 (SN) (supra) the learned Chief Justice spoke thus :-"rule 12 provides that a minor plaintiff shall, on attaining majority, elect whether he will proceed with the suit and where he elects to proceed with the suit, he shall apply for an order discharging the next friend and for leave to proceed in his own name. The application made for adjournment of the case by the counsel for the plaintiffs was rejected and as the counsel refused to examine witnesses and sought time for filing a revision, the plaintiff's case closed. In my opinion, when it was brought to the notice of the trial Court that the plaintiff No. 1 had attained majority during the pendency of the suit, he ought to have adjourned the suit for ascertaining whether the said plaintiff elected to proceed with the suit or not. Such a statement could not have been made by the counsel presumably for the reason that he had obtained the power from the guardian. "in Vidya Wati (AIR 1993 Delhi 187) (supra) the High Court of Delhi in paragraph 51 of the decision held as under :-"51. The contention of the learned counsel for the tenant is that appellant No. 5 has become major long back and if she was to file the appeal after becoming major the same would have been time barred and thus, as she had not elected to continue with the appeal within the limitation of 60 days which was the period for filing the appeal, the whole appeal should be dismissed. There is no merit in this contention. Order XXXII Rule 12 of the Code of Civil Procedure which requires the minor plaintiff to make the election does not at all provide that if no such election is made by the minor on attaining the majority the suit is to be dismissed. In Ishar Singh v. Bakshish Singh, AIR, 1929 Lahore 555 (2) (AIR 1929 Lahore 555 (2) ), similar question arose for decision. In the said case during the pendency of the appeal on behalf of a minor it was discovered that the minor had attained the majority after the institution of the appeal and the Court instead of calling upon the quondam minor to elect whether he intended to proceed with the appeal or not, dismissed it for want of prosecution. . . . " ( 6 ) IN view of the aforesaid enunciation of law, there remains no iota of doubt, that the plaintiff after attaining the age of majority is required to take certain positive steps and the litigation cannot be permitted to exist in a vacuum. He cannot take the plea that he would continue to be represented by his guardian. " ( 6 ) IN view of the aforesaid enunciation of law, there remains no iota of doubt, that the plaintiff after attaining the age of majority is required to take certain positive steps and the litigation cannot be permitted to exist in a vacuum. He cannot take the plea that he would continue to be represented by his guardian. In view of the aforesaid the impugned order is unsustainable and is accordingly set aside and plaintiff is directed to take positive steps as contemplated under Order 32 Rule 12 of the CPC within a period of eight weeks from today. ( 7 ) THE civil revision is accordingly allowed. However, in the peculiar facts and circumstances of the case, there shall be no order as to costs. Revision allowed. .