084-NLR-NLR-V-07-RAMAN-CHETTY-v.-ABDUL-RASAC.pdf
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RAMAN CHETTY v. ABDUL RASAC.D. 0., Galle, 6,681.
1903.
January 28*
Partition suit against minors—Guardian ad litem—Certificate of euratorship—
Civil Procedure Code, ss. 6, 6, and 582—Position of guardian ad litem in
the suit.
In a partition suit a motion to tak^ the plaint off the file, becausethe shares alleged to belong to tho plaintiff do not belong to him, isirregular.
It is frivolous on the part of one who had allowed himsblf to ‘'beappointed a guardian ad litem to represent certain minors in a partitionsuit, and given a prosy to his proctor to appear and defend the action,to object to the action on the ground that the minors have not been'properly represented.
The proceeding in which he was made a guardian ad litem and added'-as a defendant is a proceeding which comes within the .definition of theword ‘‘ action ” in section 6 of the Civil- Procedure Code.
It is not necessary that such a guardian ad litem should obtain a certi-ficate of euratorship under section 582 of the Code.
The person appointed as a guardian to represent a minor in an actionshould not be made a defendant in the action. His name should appearin the caption of the plaint as the nest friend of the minors by adding to-the names of the minor defendants the words “ by their next friend,.”
T
HE plaintiff instituted this action for a partition of certainlands alleging .that the first and second defendants, who were
minors, were joint owners. The third defendant was the dulyappointed guardian ad litem of the first and second defendants.
Without filing answer the defendants moved the Court totake the plaint off the file because (1) the caption of the plaintshowed that the plaintiff sued as “ N. K. Y. R. M. Ramen Chetty ofGalle,” meaning thereby that the land in respect of which theaction was brought belonged not only to Ramen Chetty, but also tothe other members of the firm N. K. Y. R. M.; and (2) the first andsecond defendants being miners could not be represented by aguardian ad litem but by a guardian or curator.
The Court (Mr. J. D. Mason) ruled as follows: —
" In a partition suit a minor should be represented by a fcuratoTappointed under section 582. Section 479 applies *when the minoris a defendant to an action* which is defined to be a proceeding forthe prosecution or redress of a wrong. A partition suit thereforeis not an action.• (
The defendants’ motion that the plaint be taken off the file isirregular, but the Court holds' that the plaintiff cannot proceed
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1903* with the suit until a legal representative of the minor has.beenJanuary 26'. appointed. ’ ’
The plaintiff appealed.
T'aw Laiujenberij. for plaintiff, appellant.
H. .4. J ay award e ue, for respondent.
2Hth January, 1900. Lavaed, C.S.—
. .Before, this action was commenced the third defendant was, onthe 17th day of March. 1902, duly appointed guardian ad litem ofi lie first and second defendants. He then, after the action wasinstituted, gave a proxy in favour of Mr. Abeywardene as guardian-ml litem of the first and second defendants. The proxy authorizedMr. Abeywardene to appear and defend this action.. Mr. Abev-wardene tiled proxy on the 14th August, and moved for twoweeks' time to file answer. On the 29th August Mr. Abeywar-dt-tir moved for notice on the plaintiff to show cause why theplaint should not be taken off the file, giving three reasons. Thefirst reason was that the shares. claimed by the plaintiff did notbelong to him. 1. am entirely unable to understand how anypvoetor could suggest to a District Court in a partition suit that theplaint should he taken off the. tile because the shares alleged tobelong to the plaintiff did not belong to hint. The second objectiontaken was that the first and second defendants are not properlyrepresented. The District. Judge has upheld this second objection,and taken no notice of either the first or the third objection.The action of the guardian ad litem in taking this objection seemstn me to be purely frivolous. He showed no cause originallyagainst being appointed guardian ad litem for the defendants inthis partition suit, and he came into Court on the strength ofhis appointment and gave his proctor a proxy to defend thisaction.
It may he. however, that the aetkm has been wrongly institutedby the plaintiff. It- has been argued that, under the Ordinance No. 1«>ol 1H6H. a minor, in view uf the definition given of a " representa-tive " in section 1. can only appear by his guardian or curator,fiecause. at the time of f()rdinance No. 10 of 1868 being passed, the< trdinance No. 2*of 1889, which I shall presently deal with, was not inforce. Now. curiously enough, in the Ofdinance No. 10 of 1863, ex-.eepl in the interpretation clause, the word 'i representative ’’ nowhereoccurs: but. assuming that the' meaning of that section is that aminor can only be represented by a person legally entitled to Actfor and on behalf of him as his guardian, it appeal's to me that we
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must look .to the law in force at the time the partition suit is 1903*instituted to see whether it is necessary that a minor must be January 28.represented by a guardian specially appointed for that purpose ad Wtm c.J,litem. The District Judge is of opinion that under the CivilProcedure Code an action can only be brought for the preventionor redress of a wrong, because “ action ” is so interpreted in section5 of that Code. By that section, however, the word “ action ” isonly so interpreted if there is nothing in the subject or contextrepugnant thereto. If we were to limit all actions in ouc Courtsto the prevention' or redress of wronfs, no person could bring anaction to compel the fulfilment cft an obligation. However, it isnot necessary for us to so hold, because section 6 of the Ordinanceexpressly defines action, and lays down that “ every application* toa Court for relief or remedy obtainable through the exercise of theCourt’s power or authority, or otherwise to invite its interference,constitutes an action.”
A partition suit is an application for relief or remedy obtainable-through the exercise of the power and authority of the DistrictCourt. Such being the case, there is no difficulty in interpreting'the word action inchapter 35soas to make itinclude partition
suits. Under theprovisionsofthat chapterthe Courthas
power, where the defendant to the action is a minor, to appointa proper person tobe -guardian inthe action forsuch minor,and
generally to act onhis behalfin the conduct ofthe case.The
defendants’ motion that the plaintiff’s plaint be taken off the filemust be dismissed, and the plaintiff allowed to proceed with hisaction, provided he amends the caption of his plaint by striking offthe third defendant as a separate party, and adds to the names ofthe first arid second defendants the words “ by their next friend,
Bamat Hakim Tuan Hanifa.”
The appellant is entitled to the costs of his appeal. The-objection taken by this guardian ad litem appears to us to be so-frivolous that we think it right that he should pay himselfthe costs of the District Court and of this appeal, and that heshould not be allowed to charge the same to the estate of the-minors.
Moxcreiff, J.—
I am of the same opihion. The Judge thought that a legalrepresentative should be appointed to the minors before the case ,could proceed. I think a legal* representative has been appointed.I* agree with the Chief Justice that the proceeding in which thethird defendant was added as guardian ad litem was a proceeding
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1903.
January 28.
Monobbiff,
J.
which is included in the definition of action under section 6 of theCode. That section appears under the heading of “ actions ingeneral ” and “ general provisions."
As to the other point, to the effect that the guardian ad litemshould obtain a certificate of curatorship under section 682 of theCode, the learned Judge is mistaken. It has been decided by theSupreme Court that even a curator must be appointed guardianad litem.
But the converse proposition, that a next friend or guardian adlitem must be appointed curator does not hold good. The provi-sion contained in section 682 is to the effect that a person cannotdefend or institute an action of this description until he hasobtained a certificate of curatorship, where the.action is connectedwith the estate of a minor of which he claims the charge of theestate of the minors, and there is no necessity for his obtaining acertificate of curatorship..