- The Hon’ble High Court of Kerala has observed, in the case of Krishna Moorthy Rao & Anr. V. S.Bhanumathi @ Lakshmi & Anr that a minor who filed a suit without appointing a next friend as laid down under Order 32 Rule 2 of C.P.C, can restore the defect by appointing a next friend, seeking such prayer by filing a separate petition for the same and the Suit can be proceeded.
- The petitioner here, was a defendant in a civil case regarding a property matter pending before the appropriate court and filed this original petition under article 227 of The Constitution of India challenging the order of the learned lower court to allow appointment of a guardian for the minor petitioner in the civil case after the initiation of proceedings.
- Article 227 envisages that every High Court shall have superintendence over all courts and tribunals throughout the territories where it exercises its jurisdiction.
- The Learned Counsel for the petitioner opposing such order of the lower court contended that on a plain reading of Order 32 Rule 2 of the CPC, it is undoubtedly clear that where a Suit is instituted without a next friend, plaint to be taken off the file.
- Relying on the judgment of Kamalammal v. A.M. Shanmugham & Ors, he reiterated the difference between a plaint being taken off the file and being dismissed. A plaint is dismissed, when one knowing that he was a minor and incompetent to institute a suit without the next friend and yet filing a suit with a view to deceive the court. On the other hand, it is taken off the file,in case a minor filed the suit without realizing his minority.
- Through leading case laws, the learned council emphasized on how appointing a next friend in a suit instituted by a minor is a prerequisite to be complied
- to avoid any irregularity and further pointed that there was no direct decision of this Honorable High Court on this point.
- The Honorable Mr. Justice A. Badharudeen, differing from this opinion, citied Ahammed Pillai v. Subaida Beevi's case where this High court had held that such an omission would only be an irregularity and not a fatal defect in the proceedings. The decree as such would valid and cannot be set aside when such a set aside is proved to affect the petitioner prejudicially. Hence the irregularity in question was held to be a curable one depending upon the facts and circumstances of the case.
- Hence, the Honorable HC deposed off the original petition in favor of the respondent and held that a Suit filed by a minor without a next friend need not be taken off from the file and the same can be fixed by filing a subsequent application.
- The impugned order was confirmed and the Learned Judge ordered for expedition of proceeding of original case and to dispose it off within 6 months from the present order.
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