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2018 DIGILAW 1053 (ALL)

RUPESH KUMAR v. OM PRAKASH SINGH

2018-04-30

PANKAJ MITHAL, RAJIV JOSHI

body2018
JUDGMENT By the Court.—Heard Sri S.B.Singh, learned counsel for the appellant. Sri Mansoor Ahmad has appeared for respondent No. 2. No one has appeared for respondent No. 1, though he is duly represented by a counsel. 2. This appeal has been preferred under Section 173 of the Motor Vehicles Act,1988 against the judgment and order dated 10.1.2007 passed by the Motor Accidents Claim Tribunal Bulandshahr in M.A.C.P. No. 352 of 2003 (Rupesh Kumar v. Om Prakash and another) by which the claim petition of the claimant-appellant has been dismissed on the ground that it was not presented through next of friend though on the date of presentation of the claim petition, he was minor, aged about 17 years. 3. A perusal of the impugned judgment and order of the Tribunal reveals that at one hand, it had dismissed the claim petition as the claimant was a minor and incapable of presenting the claim without the next of friend and on the other hand it had determined the compensation of Rs. 3,37,800 on merits. 4. The determination of compensation on merits would have come later on, only if the claim petition was in proper order and maintainable. Therefore, the Tribunal was not justified in adjudicating the claim on merits, when the claim petition itself was not maintainable. 5. There is no dispute that the claimant-appellant on the date of filing of the claim petition was aged about 17 years and was a minor. 6. The Code of Civil Procedure (hereinafter referred to as ‘C.P.C’) vide Order XXXII Rule 1 provides that a minor has to sue by the next friend. Rule 2 of Order XXXII of C.P.C. provides that where a suit/claim is instituted by or on behalf of the minor without a next friend, the defendant may apply to have the plaint taken off the file. 7. A conjoint reading of both the above provisions would reveal that the Court cannot proceed with the plaint/claim presented by a minor without a next friend and any such plaint/claim has to be deferred till the defect in its presentation is removed. It is only on curing of the irregularity with regard to presentation of the plaint/claim on behalf of the minor by appointing the next friend to pursue the same, that the Court can proceed further on merits of the plaint/suit. 8. It is only on curing of the irregularity with regard to presentation of the plaint/claim on behalf of the minor by appointing the next friend to pursue the same, that the Court can proceed further on merits of the plaint/suit. 8. Order 32 is specially designed to protect the interest of minors or persons of unsound mind and to ensure that they are represented in the suit/claim or proceedings by a person who is qualified to act in the interest of such a person. 9. A Minor who is party to a suit/claim or who brings about a suit is a person under the protection of the Court and thus it is the duty of the Court to watch his interrest and to be vigilant enough to ensure that he is duly represented by a fit person. 10. In view of the above, we are of the opinion that under the aforesaid provisions of Order 32 Rule 1 and 2 C.P.C. it is incumbent upon the Court to give an opportunity to the minor or his counsel who has presented the suit/claim in his name to remove the irregularity in the presentation of the plaint/claim and not to dismiss the suit or claim straight away on a technical ground that the minor is not competent to sue. 11. In Legal Heirs and Representative of Deceased Amrutaben Budhaji Thakore v. Nitaben Somabhai Patel, 2003 AIR Gujarat 292, it has been held that suit/claim is not to be dismissed, if it is not presented by the minor through the next of friend but the plaint of such suit/claim is to be taken off the file. The Court can order for taking the plaint of the file even without any application of the defendant in this regard. The Court on taking notice of the minority of the plaintiff is required to suspend all proceedings of the suit/claim until the defect, in not presenting the plaint/claim through the next friend of the minor, is removed. The aforesaid provision does not empower the Court to non-suit the plaintiff/claimant merely for the reason that the plaint/claim was not presented by the minor through the next of friend. The Court in such circumstances is bound to give an opportunity to the said minor or his counsel to remove the defect or the irregularity by mentioning the next of friend through whom he wants to pursue the matter. The Court in such circumstances is bound to give an opportunity to the said minor or his counsel to remove the defect or the irregularity by mentioning the next of friend through whom he wants to pursue the matter. 12. In the case at hand, we do not find that any opportunity was given to the plaintiff/claimant to present the plaint/claim through the next of friend or to remove the irregularity in the presentation of the plaint or claim. Thus, we are of the view that the Tribunal committed an error of law in dismissing the claim on the above technical ground. 13. Accordingly, we set aside the impugned judgment and order dated 10.1.2007 passed by the Motor Accidents Claim Tribunal Bulandshahr in M.A.C.P. No. 352 of 2003 (Rupesh Kumar v. Om Prakash and another) and remit the matter to the Tribunal to re-decide the same in accordance with law most expeditiously, if possible, within the next six months. 14. The appeal is allowed.