Sieberi v. New Asia Trading Co., Ltd.
Present: H. N. G. Fernando, J., and Sri Skanda Raja^i, J.SIEBERT, Appellant, and NEW ASIA TRADING CO., LTD. and
S.C. 49 (Inly.) of 1961—D. C. Colombo, 49992fM
Action against minor—Attainment of majority soon after plaint is filed—Resultingposition—Action not void ab initio—Meaning of “ Order ”— Civil ProcedureCode, as. 5, 46, 48, 476, 470, 480, 493.
Where, in an action instituted against a minor, the minor attains majoritysoon after the plaint is filed, it is not open to him to have himself dischargedfrom the proceedings in terms of section 480 of the Civil Procedure Code. Insuch a case, thi acceptance of the plaint is not an “ order ” within the meaningof section 480.
An action against a minor simpHciter is not void ab initio, and can be dulycontinued subject only to compliance with the requirement of eoction 479 of theCivil Procedure Code that a guardian Bhould be appointed when the fact ofminority is established.
H. N. G. FERNANDO, J.—fiiebert v. New Asia Trading Co., Ltd.
-A-PPEAX, from an order of the District Court, Colombo.S. Sharvananda, for Plaintiff-Appellant.
H. W. Jayetoardene, Q.C., with C. Ranganathan, for the 2nd Defendant-Respondent.
Cur. adv. vult.
January 16, 1963. H. N. G. Fernando, J.—
This was an action by the Plaintiff for damages for injury alleged tohave been suffered in consequence of the negligent driving of a motorcar by the 2nd Defordant on 18lh Ma.y 1958. The plaint was filedon 17th May 1960. Summons was ordered and was served on the 2ndDefendant whose proxy was filed thereafter. But instead of filing answeras ordered by the Judge, the proctor moved the Court as follows on30th September 1960 :—
“ 2. The 2nd Defendant was a minor at the time of the institution ofthe above action. The 2nd Defendant attained majorityon the 17th dr y of July 1960 ….
The Plaintiff did not take any steps to appoint a guardianad litem over the 2nd Defendant for the purpose of this action.
Wherefore the 2nd Defendant prays that the Court bepleased to discharge him from the above action and enter aninterlocutory decree for this purpose in terms of Section 480of the Civil Procedure Code.”
This appeal is from the order made by the leamod District Judge interms of that motion by which order he purported to “ discharge the 2ndDefendant from these proceedings ”. For the appellant, it is not disputedthat the 2nd Defendant was a minor at the time when the plaint was filed,but it is argi’ed that since the 2rd Defendant did attain majority on17th July 1960, the court should not have discharged him from theproceedings, but should only have ordered summons to be served on himafresh.
In support of the order of discharge, Mr. Jayewardene had to contendthat in acceptirg the plaint the Judge had made an “ order ”, and thathe was bound to discharge that o*der under Section 480 of the Code,and thus to discharge the 2nd Defendant from the entire proceedings.The basis of this contention was that every plaint filed against a minor,and eve: y acceptance of such a plaint, is a nullity, unless the Plaintiffhas previously taken steps to have a guardian appointed for the minorand names the guardian, in that capacity, as Defendant in the plaint.In other words Counsel sought to import into the Code, for the esse ofan action against a minor, provision corresponding to that which isexpressly enacted in Section 476, namely that an action by a minor shallbe instituted by his next friend.
2*—R. 2785 (12/64)
H. N. G. FERNANDO, J.—Siebert v. New Asia Trading Go., Ltd.
But Section 479 of the Code clearly contemplates that the Courtdoes have jurisdiction to deal with an action in which a minor, simpliciter,is named as Defendant, for it provides that if the Court is satisfied ofthe fact of the minority of the Defendant to an action, the Court shallappoint a guardian for the minor. The procedure for such an appoint-ment is prescribed in Section 493, but there is nothing in that Sectionwhich suggests or even implies that the appointment must be madebefore a plaint is filed. In the instant case, therefore, Section 479 wouldhave been applicable if the 2nd Defondant had not attained full age on17th July 1960 ; a guardian would have been appointed under the Section,and the action would then have continued without a fresh plaint beingfiled. That being so, I cannot soe how the plaint must be regarded as anullity merely because the 2nd Defendant ceased to be a minor soon afterthe plaint was filed.
It is not helpful to consider the decisions upon which counsel relied,for they deal with cases of applications under Section 480 to dischargedecrees or othor binding orders. Counsel was not able to cite anydecision holding that the acceptance of a plaint is an order which may bedischarged under that Section. But I do find some assistance in a recentjudgment of the Chief Justice (63 N. L. R. 569), holding that where aminor institutes an action as plaintiff, without a next friend and attainsmajority subsequently, the Court may allow the action to continue.Despite the apparently peremptory terms of Section 476, i.e. “ everyaction by a minor shall be instituted in his name by an adult person. . . .”, the judgment declares that an action by a minor plaintiffinstituted by himself is not void a'i initio. Considering then that theonly specific provision in the Codo applicable to an action against a minoris Section 479, the terms of which in no way postulate or imply that suchan action shall only be instituted by means of a plaint naming a guardianas defendant, I must hold that an action against a minor simpliciter is notvoid ab initio, and can be duly continued subject only to compliance withSection 479 itself, that is to say, with the appointment of a guardian whenthe fact of minority is established. If then the action instituted by meansof ti e plaint originally' filed is continuable when the appointed guardianbecomes a party by the service of summons on him, there is no reasonableground for the view that the action is not continuable if and when the minorhimself becomes a competent defendant by his attaining majority.
In ary event, the act of a Judge in accepting a plaint is not an “ order ”within the meaning of the definition of that term in Section 5 of the Code,which is “ the formal expression of ary decision of a civil court which isnot a decree ”. While an order rejecting a plaint is expressly includedwithin the definition of “ decree ”, the act of accepting a plaint is notreferred to in either definition.
Section 46 specifies the three courses open to the Judge upon presen-tation of a plaint, namely “ the allowance of the filing of the plaint ”, or the“ return of the plaint for amendment ”, or “ the Rejection of the plaint ”,But it is only with reference to the return or the rejection of a plaint that
H. N. Q. FERNANDO, J.—Siebert v. New Asia Trading Go., Ltd.
the term “ order ” occurs in the Code. In these two cases, the Judge isrequired by Section 48 to sign a written order stating his grounds for therejection or return, and his act of return or rejection thus acquires thecharacter of being “ the formal expression of a decision ” a3 contemplatedin the definition of “ order ”, The absence of similar express provisionfor an older to be made when a Judge allows a plaint to be filed supportsthe opinion that the act of accepting a plaint was not intended to beregarded as an “ order ” within the meaning of Section 5 and to be capableof being discharged under Section 480.
It would be manifestly unreasonable to expect every prospective plain-tiff to make a preliminary investigation as to the actual age of everyprospective defendant before filing an action. The imposition of sucha condition precedent would in the vast majority of cases render nugatorythe fundamental right to have recourse to the Courts. If a plaintiff,havirg striven to the best of his ability to fulfil such a condition, filesaction in the honest belief that the defendant is a major, but if it subse-quently t ims out that his belief was mistaken, it would surely beunreasonable that the filing of the action should not protect the plaintiffagainst the operation of the law of limitation.
In partition actions, it is not uncommon for a party to find himselfunable to trace the registration of his own birth. The law relatingto the registration of births expressly contemplates the possibility ofdul y or mistake in the matter of registration when it provides for lateregistrations and for rectification. That law does not and cannot preventthe possibility that the birth of a particular individual, whom a prospec-tive plaintiff may desire to sue, may not have been registered at all. Insuch circumstances, a provision in the Civil Procedure Code casting on apro p active plaintiff the burden of aseei*taining, before the period oflimitation applicable to his claim expires, the actual correct age of theprospective defendant, would be worse than unreasonable : for it wouldbe absurd. Lex non cogit ad impossibilia. Even particulars as to thename, d •scription, and place of residence of a defendant are required to bestated in a plaint only “ so far as the same can be ascertained ”. Ittherefore does not cause me any surprise whatsoever to find that theCode does not impose upon a plaintiff the unreasonable and absurdburden which Mr. Jayewa.dma is forced to try to read into the law.
Nor have I ary difficulty in accepting my brother’s statement, basedon his familiarity with the practice in many of our trial courts, that thematter of the minority of a defendant is usually dealt with after a plaint isfiled naming as defendant a person who is subsequently claimed to be aminor, and that proof of minority is followed only by the appointment ofa guardian for the minor, and not (as ordered in this case) by the “ dis-charge of the minor from the proceedings ”. The fact that the practicehas not hitherto been considered worthy of disputation satisfactorilyaccounts for the lack (to my present knowledge) of any decision of thisCourt approving that practice.
Path’rana v. Goonesekcra
I hold for the reasons statod that the District Judge wrongly madeorder discharging the 2nd Defendant from the proceedings in this action.I am inclined even to the opinion that the summons already served onthe 2nd Defendant was effective, for his proxy was in fact filed, in res*ponse to that summons, after he had attained full age. Nevertheless, aswe heard no argument on this incidental point, T am content to allowonly the reliof claimed by counsel for the Plaintiff.
I set aside the order appealed from, and direct the District Judge toissue frefh summons on the 2nd Defendant and thereafcer to proceedwith the trial agairst the 2nd Defendant upon the plaint already filed,subjoct of course to any application to the contrary which the Plaintiffmay make. The 2nd Defendant must pay to the Plaintiff the taxedcosts of the proceedings upon the motion for his discharge and of thisappeal.
Ski Skahda Rajah, J.—I agree.
Order set aside.
SIEBERT, Appellant, and NEW ASIA TRADING CO., LTD. and another, Respondents