BASNATAKE, C.J.—Wickremaratna v. Josephine Silva
1959Present: Basnayake, C.J., and Pulle, J.WICKREMARATNA, Appellant, and JOSEPHINE SILVA,
S. G. 108158—D. G. Avissawella, 8622
Minors—Action instituted by minor without next friend—Not void ab initio—Scope ofdefendant's right to have action dismissed—Civil Procedure Code, ss. 476, 478.
Where a defendant makes an application under section 478 of the CivilProcedure Code to have the plaint taken off the file on the ground that theaction was instituted hy a minor without a next friend, the Court is entitled torefuse the application if it is shown that the plaintiff came of age after the dateof the institution of the action and prior to the date of the defendant’sapplication.
Appeal from an order of the District Court, Avissawella.
H. W. Jayewardene, Q.G., with S. B. Lelcamge and N. R. M. Daluivatte,for defendant-appellant.
No appearance for plaintiff-respondent.
Cur. ad. milt.
December 10, 1959. Basnayake, C.J.—
This is an appeal from the order of the District Judge refusing to allowan application by the defendant under section 478 of the Civil ProcedureCode to have the plaint taken off the file.
1 (1952) 54 N. L. R. 449.
B A.SjN'AYAKJE, C.J.—Wideremaratna v. Josephine Silva
The plaintiff seeks to recover Rs. 5,000 as damages from the defendantfor seduction. On 6th May 1957 when the action was instituted she wasa minor, but it was not instituted in her name by a next friend as requiredby section 476 of the Civil Procedure Code. Summons could not be per-sonally served on the defendant though it was re-issued several times.On 30th September 1957 the plaintiff’s Proctor moved the Court undersection 60 of the Civil Procedure Code to prescribe the following mode ofservice of summons “ by affixing the same to the front door of the lastknown place of abode of the defendant at Kahahena, Waga ”. Thisapplication was allowed and on 8th November 1957 the defendant’sProctor filed his proxy and moved for a date to file answer. The Courtfixed 15th November 1957 for the purpose. The answer was not filed onthat day, nor was it filed on 2nd December 1957 or 19th December 1957,the further dates that were given. It was eventually filed on 28thJanuary 1958. On 11th February 1958 the case was called for fixing thedate of trial and it was fixed for 29th May. On 8th May the plaintiff’sProctor filed the list of witnesses and documents and moved for summons.On 20th May the defendant’s Proctor with notice to the Proctor forplaintiff moved that the trial fixed for 29th May be postponed as thedefendant could not get ready “ due to certain difficulties ”. On 29thMay the trial was refixed for 3rd October. On 18th September theplaintiff’s Proctor obtained summons on the witnesses. On 30th Sept-ember 1958 the defendant made an application by way of summaryprocedure under section 478 of the Civil Procedure Code that the case betaken off the trial roll. The plaintiff had come of age on 20th January1958. The District Judge after hearing counsel dismissed the defendant’sapplication.
I see no reason to interfere with the order made by him. An applicationunder section 478 must be made while the plaintiff is a minor. Thepresent application does not fall within the ambit of that section as it hasbeen made long after the plaintiff ceased to be a minor. The power givento the Court to order that the case be taken off the file is designed toenable a minor to regularise his or her plaint by having a next friendappointed. In the case of a minor who has come of age at the time of theapplication, taking the case off the file would serve no purpose as he iscompetent to proceed without a next friend. The Indian Courts appearto have taken the same view of the corresponding section of the IndianCivil Procedure Code as that expressed by me here. It is sufficient tomention the case of Beni Ram Bhutt v. Ram Lai Dhulcri 1, and Rattonbaiv. Chabildas Lalloobhoy and others2. The rule of procedure in Englandtoo is expressed in the same permissive form as ours. It states :
“ Infants may sue as plaintiff by their next friend, in the mannerheretofore practised in the Chancery Division, and may, in like manner,defend by their guardians appointed for that purpose. (Order 16, r. 16.)
J J. L. R. (1886) 13 Calcatta 190 at 193.
a I. L. R. (1888) 13 Bombay 7.
A liyarlebba* v. Pathummah
This rule has not been regarded as rendering an action ah initio bad. Itis not necessary for the purpose of this judgment to refer to the Englishcases. It would be sufficient to cite the following passage from Simpsonon Infants (p. 294, 4th Ed.)—
“ If an action be commenced without a next friend, the defendantmay move for it to be dismissed, with costs to be paid by the Solicitorwho issued the writ; but, his proper course would appear to be to applyby summons on notice to stay proceedings, until a next friend beappointed.”
An action instituted by a minor without a next friend being designated inthe plaint is not void ab initio. Under the Roman-Dutch Daw :
“if a minor has figured in a judicial proceeding without
curator, having perchance been held to be a major by mistake and thusnot having been shut out by any exception being raised to his ‘persona,a judgment delivered against him indeed is of no weight, but one givenfor him will be effective.” (Voet, Bk. V, Tit. I., s. 11—GaneVol. 2, p. 15.)
This view finds support in the provisions of the Civil Procedure Codewhich do not declare a suit instituted by a minor without a next friendvoid ab initio nor do they provide that such an action should be dis-missed ; but they leave room for the omission to be rectified without theaction being automatically dismissed. Even in a case to which section478 (2) applies it vests a wide discretion in the court. It empowers thecourt to make such order in the matter as it thinks fit.
The appeal is accordingly dismissed.
Puulje, J.—I agree.
WICKREMARATNA, Appellant, and JOSEPHINE SILVA, Respondent