040-SLLR-SLLR-2004-V-2-SCHRIEBER-v.-DAYARATNA-AND-OTHERS.pdf
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Schrieber v Dayaratna and others
(Amaratunaa. J.)
341
SCHRIEBERv
DAYARATNA AND OTHERSCOURT OF APPEALAMARATUNGA, J .
A.L.A 181/2003
C. MT. LAVINIA NO. 80/02/NFNOVEMBER 28, 2003
Civil Procedure Code – Appointment of a next friend – Minor resident atMawanella – Assaulted in Dehiwela – Action filed in Mt. Lavinia – Doesthe District Court of Mt. Lavinia have Jurisdiction to appoint a next friend?-Judicature Act-Amendment 16 of 1989-Section 19(1)-Appointmentof a Guardian – Compared – Civil Procedure Code section 479, section481(2) – Failure to give Notice of the application to appoint a next friend- A defect or an irregularity in the appointment of a next friend – Is itfatal?
The plaintiff minor claimed damages from the defendant, in the District Courtof Mt. Lavinia, though the minor resided at Mawanella, but was assaulted inDehiwela. The application of the father of the minor to the District Court of Mt.Lavinia to appoint him as the next friend, was allowed. The petitioner contendsthat (1) the District Court of Mt. Lavinia had no jurisdiction to appoint a nextfriend to represent a minor who resided in Mawanella and (2) there was afailure to serve notice on the petitioner of the application for the appointmentof a next friend.
Held:
I) Jurisdiction over the person and estates of minor and over theirguardians is vested in the District Court which has jurisdiction over theplace where the minor resides. The power to appoint a guardian for theaction is vested in the Court where the action against the minor isinstituted, irrespective of the residence of the minor. The same principleapplies for the appointment of a next friend.
The appointment of a next friend is made not upon jurisdiction the Courthas over the minor but upon Courts jurisdiction over the cause of actionin respect of which the minor proposes to file action.
There is no legal necessity to make the petitioner a respondent to theapplication to appoint a new friend. Therefore there is no requirement togive notice to him even though he had been named a respondent.
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Irregularity in the appointment of a next friend is no ground for thedismissal of the action. Even if the failure to serve notice on the petitioneris treated as an irregularity it cannot vitiate the order appointing the nextfriend.
APPLICATION for Leave to Appeal against the Order of the District Court ofMt. Lavinia.
Cases referred to:
Keppitipola Kumarihamy v Rambukpotha – (1929) 30 NLR 273
Fernando v Fernando – 2 Ceyl. LR 282
Mohamed Umma v Mohideen – 2 Cey. Law R. 163
Wanigasekera v Louisz – (1943) 44 NLR 37
Walian v Banke Behari Pershad Singh 1 LR30Cal. 1021 I.L.R.
N.D.R Casie Chetty for petitioner.
Ranjan Suwandaratne for 1st and 2nd respondents
Cur. adv. vult.
July 16, 2004
GAMINI AMARATUNGA, J.This an application for leave to appeal against an order madeby the learned District Judge of Mt. Lavinia dated 21.5.2003rejecting the objection of the petitioner to the order made by thatCourt on 21.01.2002, appointing the 2"d respondent minor’s father,the 1 st respondent, as the next friend in the action the minor filedagainst the petitioner to recover damages for personal injuriescaused to her as a result of an assault by the petitioner.
It appears that the 2"d respondent minor has filed caseNO.3573/02/M in the District Court of Mt. Lavinia on 23.01.2002,against the defendant claiming damages in a sum of Rs.750,000/-for personal injuries caused to her by assaulting her on 25.01.2000at Dehiwala. In the plaint it is alleged that on 25.01.2000, when theminor, along with her father crossed the road at a pedestriancrossing at the Dehiwala junction, the defendant stopped his
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vehicle and without any cause, assaulted the minor plaintiff causingdislocation of two teeth of her upper jaw. It was for this injury thatthe plaintiff minor claimed damages from the defendant.
It also averred in the plaint that at the time of the aforesaidincident the defendant assaulted her father and for that incident,the defendant was charged in the Magistrates Court, Mt Lavinia,and that he pleaded guilty and was fined Rs. 2000/- and was givena suspended sentence.
Before the plaint was filed in the aforesaid damages case on21.01.2002, the plaintiff’s father had filed petition and affidavit in theDistrict Court of Mt. Lavinia praying that he be appointed next friendof the plaintiff minor for the purpose of filing the aforesaid damagescase against the defendant. The petitioner had been named the 3rdrespondent to that application. The Court had assignedNo.80/2002/N.F. for that application. The petition for theappointment of a next friend was accompanied by a draft plaint ofthe damages action.
On 21.01.2002, the learned District Judge, after recording theevidence of the minor plaintiff’s father had made order appointinghim as the next friend of the minor for the purpose of institutionaction on the draft plaint annexed to the petition. The plaint in thedamages action was filed on the same day and it was assigned No.3573/02.M.
After receiving summons in the damages action, the petitionerhad made an application to the District Court to get the orderappointing the minor plaintiff’s next friend vacated. The groundsurged in support to the application were, (i) that the District Courtof Mt. Lavinia had no jurisdiction to appoint a next friend torepresent a minor who resided in Mawanella and (ii) that there wasfailure to serve notice on the petitioner of the application for theappointment of a next friend. After considering the application, thelearned District Judge had made order refusing the petitioner'sapplication. Now he seeks leave to appeal against that order mainlyon the same grounds.
In support of the submission that the District Court of Mt.Lavinia had no jurisdiction to appoint a next friend to represent aminor resident in Mawanella, section 19(1) of the Judicature Act, as
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amended by Judicature (Amendment) Act No. 16 of 1989 has beencited in the written submissions of the petitioner. The relevant partof the said section 19(1) of the Judicature Act is as follows.
“Every District Court shall be a court of record and shall within
its district have unlimited original jurisdiction over the
persons and estates of persons of unsound mind, minors andwards ….and over guardians and trustees …."
In view of this provision it appears that the submission(impliedly made) is that jurisdiction to appoint a next friend for theminor plaintiff is vested in the District Court whjch has jurisdictionover the area where the minor is resident, namely Mawanella.
It is not disputed that jurisdiction over the person and estatesof minors and over their guardians is vested in the District Courtwhich has jurisdiction over the place where the minor resides. Thecase of Keppitipola Kumarihamy v Rambukpotha W cited on behalfof the petitioner confirms this. That case relates to the appointmentof a guardian for a minor. But the appointment of a guardian of aminor is different from appointing a next friend. The appointment ofa next friend is made not upon jurisdiction the Court has over theminor, but upon the Court’s jurisdiction over the cause of action inrespect of which the minor proposes to file action.
A case has to be filed or defended by a person who has thelegal capacity to be a party to an action. A minor has no suchcapacity. Unless he is represented by a person having legalcapacity the Court cannot enforce its decrees against a minor oraward costs against him. This is the reason for the necessity tohave a next friend for minor plaintiff. The power of the Court, wherethe minor’s action or an action against the minor is instituted toappoint a next friend or a guardian for the purpose of the actionmanifest from an examination of section 479 of the Civil ProcedureCode. That section states that “where the defendant to an action isa minor, the Court, on being satisfied of the fact of his minority, shallappoint a proper person to be guardian for the action for suchminor….”. This shows that the power to appoint a guardian for theaction is vested in the Court where the action against the minor isinstituted, irrespective of the residence of the minor. The sameprinciple applies for the appointment of a next friend. The
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requirement that the plaint intended to be filed shall be submittedwith the application to appoint a next friend is to enable the Courtto exercise its judgment whether the plaint, on the face of it showsa good cause of action and whether it is to the interest of the minorthat the action should be brought. Fernando v Fernando <2)-
The absurdity of the petitioner’s argument that the next friendor the guardian for the action must be appointed by the DistrictCourt where the minor resides can be demonstrated by thefollowing hypothetical example. If a case against a minor, residingin Mawanella, is instituted in the District Court of Mt. Lavinia, can itbe said that the District Court having jurisdiction over Mawanellahas to appoint the guarding for the action and the Mt. Lavinia Courthas no jurisdiction to make such appointment ? Such a propositionis absurd, impracticable and accordingly is untenable. For thosereason I hold that the District Court of Mt. Lavinia had jurisdictionto appoint a next friend for the minor plaintiff’s action instituted inthat Court.
The other point urged in support of leave to appeal is thefailure to give notice to the petitioner of the application to appoint anext friend. This submission has been made in view of therequirement set out in the section 481 (2) of the Civil ProcedureCode that the defendant to the action shall be made a respondentto the application for the appointment of a next friend. It had beenheld in Mohamed Umma v MohideenW that the intended defendantneed not be made respondent to the petition and that therequirement to make the defendant a respondent only applies incases where such application is made in the course of or asincidental to an action. In the present case the petitioner had beencited as the 3rcJ respondent to the application for the appointmentof a next friend. If there is no legal necessity to make the petitionera respondent, there is no requirement to give notice to him eventhough he had been named a respondent.
In any event, any irregularity in the appointment of a nextfriend is no ground for the dismissal of the action. Wanigasekara vLouisz W Howard, C.J. in that case quoted with approval thefollowing passage from Chitaley, volume 3 (2nd Ed.) “A defect orirregularity in procedure in the appointment of a guardian ad litemis also only an irregularity and will not be a ground for setting aside
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the decree unless it had the effect of causing prejudice to the minor.In Walian v Banke Behan Pershad Singh,(5) Their Lordships of theJudicial Committee, after impressing upon the Courts in India theimportance of following strictly the rules laid down in the Code,proceeded to observe at 1031 ‘But it is quite another thing to saythat a defect in following the rules is necessarily fatal to theproceedings.”
Thus even if the failure to serve notice on the petitioner istreated as an irregularity, it cannot vitiate the order appointing thenext friend.
For the reasons set out above I uphold the learned DistrictJudge’s order dismissing the petitioners application made to havethe appointment of the father of the plaintiff as her next friend forthe action filed against the petitioner set aside. There is no reasonto grant leave to appeal. I therefore refuse leave to appeal anddismiss the application with costs in a sum of Rs.10000/-.
Application dismissed.