033-SLLR-SLLR-1995-2-NIHAL-SHANTHA-MINOR-BEY-NEXT-FIREND-GUNASEKERA-V.-NORANGODA.pdf
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Nihal Shantha (Minor) by Next Friend Gunasekera v. Norangoda
161
NIHAL SHANTHA (MINOR) BY NEXT FRIEND GUNASEKERA
v.
NORANGODA
SUPREME COURTG. P. S. DE SILVA, C.J.
KULATUNGA. J..
RAMANATHAN, J.
S.C. 94/94.
A. REV. 1159/86.
C. COLOMBO 6200/REJUNE 21, AND JULY 10. 1995.
Minor – instituting action by next friend – Settlement reached on trial date -Application to set aside – Non compliance of S. 500 Civil Procedure Code -Granting of Leave of Court – Judicial Act – Mandatory – Order 32 Rule 7 of IndianCivil Procedure Code – S. 462 Indian Civil Procedure Code (Old)
The plaintiff by his next friend, his father instituted proceedings seeking theejectment of the defendant and for damages. On the trial date (21.2.86) theparties arrived at a settlement. On 19.5.86 an application was made to set asidethe aforesaid settlement, on the ground of non compliance with S. 500 of the CivilProcedure Code. The application was dismissed; the Court in its order stated that“In fact the settlement was arrived at after the terms of settlement were presentedto court and its leave obtained.” The Court of Appeal refused the application inrevision. It was submitted that the settlement was invalid in terms ofS. 500 of the Civil Procedure Code for failure on the part of the District Court torecord that the settlement was with leave of court.
Held;
The court was fully conscious of the crucial fact that a minor was a party to thecase; the settlement was reached before the Court itself, the counsel and theRegistered Attorney for the Plaintiff and the minor himself were present in court.
It is not imperative for the court to expressly record the fact that leave of courtwas obtained; this fact could be shown in some way not open to doubt.
Cases referred to:
1 Manohar La! v. Jadunath Singh (1906) 1 LR 28, Allahabad 585.
Silindu v. Akura -10 NLR 193.
Bandara v. Elapatha – 23 NLR 411.
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APPEAL from the judgment of the Court of Appeal
A. K. Premadasa P.C. with C. E. de Silva for Plaintiff-Appellant.
R A. D. Samarasekera, P.C. with H. Withanachchi for substituted defendant-respondent.
Cur. adv. vult.
August 03, 1995.
P. S. DE SILVA, C.J.
The plaintiff by his next friend, his father, instituted theseproceedings in the District Court, seeking the ejectment of thedefendant from the land and premises bearing assessment Nos. 66and 67, Mulleriyawa North, Angoda, and for the recovery ofdamages. The plaintiff was a minor of about 14 years of age.
The action was on the basis that the defendant was in occupationwith the leave and licence of the plaintiff. The defendant in his answerclaimed prescriptive rights to the land and premises in suit. Thedefendant further pleaded that the plaintiff could not have andmaintain this action inasmuch as there has been a failure to complywith the provisions of section 547 of the Civil Procedure Code.
On the trial date, namely 21.2.86, the parties arrived at asettlement, whereby the defendant was to be declared entitled to onehalf share of the land and premises inclusive of the buildings bearingassessment Nos. 66 and 67 and the plaintiff was to be declaredentitled to the balance half share including the building bearingassessment No. 65.
On 19.5.86 an application was made to the District Court to havethe aforesaid settlement entered into on 21.2.86 set aside on theground of non-compliance with the provisions of section 500 of theCivil Procedure Code. This application came up for hearing beforethe same additional District Judge who heard the case andrecorded the terms of settlement on 21.2.86. After inquiry, theAdditional District Judge dismissed the application and in his orderdated 16.9.86 made the following relevant and significantobservation.
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“…The terms of settlement are given in detail in theproceedings of 21.2.86. In fact the settlement was arrived atafter the terms of settlement were presented to Court and itsleave obtained.”
Thereafter the plaintiff filed an application in revision and restitutioin integrum in the Court of Appeal to set aside the orders of theAdditional District Judge dated 21.2.86 and 16.9.86 (referred toabove) and to have the case re-fixed for trial. The Court of Appealdismissed this application. Hence the present appeal to this court.
Leave to appeal to this court was granted on the followingquestion:-
“Was the settlement arrived at on 21.2.86 invalid in terms ofsection 500 of the Civil Procedure Code for failure on the part ofthe learned judge to record that the settlement was with the
leave of court.”
Section 500 of the Civil Procedure Code reads thus;-
“500, (1) No next friend or guardian for the action shall, withoutthe leave of the Court, enter into any agreement or compromiseon behalf of a minor with reference to the action in which heacts as next friend or guardian.”
(2) Any such agreement or compromise entered into without theleave of the court shall be voidable against all parties other thanthe minor.”
Mr. Premadasa for the plaintiff-appellant strenuously contended (a)that section 500 of the Civil Procedure Code must be strictlyconstrued since it affects the rights of a minor; (b) that the court mustexpressly record the fact that the leave of the court was obtained inorder to enter into the agreement or compromise on behalf of theminor; it cannot be implied (c) the granting of “the leave of court” is ajudicial act and is a mandatory requirement.
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It is true that the record does not expressly state that “the leave ofCourt" was granted in respect of the settlement arrived at on 21.2.86.However, in the proceedings of 21.2.86 it is clearly recorded that (1)the plaintiff minor is present; (2) the father of the minor is present;
counsel for the plaintiff and the registered Attorney-at-Law for theplaintiff are present. In many cases the court merely records the factthat “the parties are present." But in the instant case there is asignificant difference; there is an express record of the presence incourt of the plaintiff who is a minor. It seems to me that this is a veryclear indication that the Court was fully conscious of the crucial factthat a minor was a party to the case. Moreover, this is not a casewhere the settlement was reached outside court and the court wasnotified of the settlement. The settlement was reached before thecourt itself, counsel and the registered Attorney-at-Law for the plaintiffbeing also present in court.
Mr. Premadasa placed strong reliance on the decision of the PrivyCouncil in Manohar Lai v. Jadunath Singh (,). Lord Macnaghten,dealing with section 462 of the then Civil Procedure Code of India(which is in terms similar to section 500 of the Civil Procedure Code)stated thus:-
"It was argued on behalf of the appellant that the exigencies ofthat provision had been complied with in this case, inasmuch asit appeared that the minor (the first respondent), who was aparty to the compromises in question, was described in the titleof the suit as a minor suing “under the guardianship of hismother,” and the terms of the compromises were, of course,before the court. In the opinion of Their Lordships that is notsufficient. There ought to be evidence that the attention of thecourt was directly called to the fact that a minor was a party tothe compromises, and it ought to be shown, by an order onpetition, or in some way not open to doubt, that the leave of thecourt was obtained."
It will be observed that the Privy Council does not hold that it isimperative for the court to expressly record the fact that leave of court
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was obtained. That fact could be shown "in some way not open todoubt.”
The next case cited by Mr. Premadasa was Silindu v. Akura(2). Inmy view that case can be easily distinguished from the case beforeus. In the course of his judgment Grenier A.J. expressed himself thus:“The record in the case before us contains the following entry …parties present. It is agreed between the parties that judgment beentered up as follows for the plaintiff and then follow the terms of thejudgment which were subsequently embodied in the decree. Thereis nothing to show that the court was made aware of the fact thatthe plaintiff was a minor…” (The emphasis is mine). In the samecase Wood Renton J, in a short judgment states” … I think that therecord should show (a) that the attention of the court has beendirected to the fact of minority, and (b) that the court has approved ofthe proposed compromises." In my view, Silindu’s case (supra) is notan authority for the proposition that the court must expressly record inthe proceedings the fact that the leave of the court was obtained.
The other case which was strongly relied on by Mr. Premadasawas Bandara v. Elapatha (3>. That was an application for restitutio inintegrum in respect of an order entered by the District Court in atestamentary action where several parties were interested in theestate. In. these proceedings, the 1st respondent was a minor.Sampayo, J. referring to section 500 of the Civil Procedure Codestated, “It appears to me that the leave of the court referred to in thesection is a special leave to be applied for by the guardian, anddifferent from the general sanction applied for by all the parties forthe approval of the court to the terms of settlement." The above dictamust be considered in the context of the facts of the case. I think thiscase too can be distinguished from the appeal before us where thecourt was fully aware of the fact that the plaintiff was a minor. In anyevent, the question whether the record should expressly state the factthat the court granted leave did not arise for consideration.
At this point it would not be irrelevant to refer to the wording inOrder 32 Rule 7 of the Indian Civil Procedure Code – Rule 7(1)-
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"No next friend or guardian for the suit shall, without the leave ofthe court, expressly recorded in the proceedings, enter intoany agreement or compromise on behalf of a minor withreference to the suit in which he acts as next friend orguardian."
It is a matter of significance that the words “expressly recorded inthe proceedings" are not found in section 500 of our Civil ProcedureCode; the omission tends to show that it is not an essentialrequirement postulated in section 500 of our code.
On a consideration of the matters set out above, I hold that thesettlement arrived at between the parties on 21.2.86 is not invalid interms of section 500 of the Civil Procedure Code by reason of thefailure of the Court to record in the proceedings that the settlementwas with the leave of court. The judgment of the Court of Appeal isaccordingly affirmed and the appeal is dismissed but without costs.
KULATUNGA, J. -1 agree.WADUGODAPITIYA, J. -1 agree.
Appeal dismissed.