PHANI SHAH ALIAS GOALA Vs. MAJOR SINGH
HIGH COURT OF CALCUTTA
Phani Shah Alias Goala
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P.N. Mookerjee, J. -
(1.) This Rule is directed against an order of the Court below allowing the opposite parties' application for amendment of plaint and dismissing the Petitioners' application under Order 32, Rule 2 of the Code of Civil Procedure. The circumstances leading to the above order are as follows:
(2.) The instant plaint was filed as far back as September 9, 1966. Thereafter, on February 9, 1968, the present Petitioners applied to the Court for dismissal of the Plaintiffs' suit on the ground that the Plaintiff No. 4, Sahan Singh, was a minor but was shown in the plaint as major and his signatures in the plaint and in the vakalatnama were forged signatures. This application appears to have been followed by a regular application under Order 32, Rule 2 of the Code of Civil Procedure on behalf of the Petitioners praying, inter alia, that the plaint should be taken off the file with costs to them. Immediately thereafter, an application for amendment of the plaint was filed on behalf of the Plaintiff No. 4, Sahan Singh, represented by his next friend and natural guardian father, Darbara Singh, for permitting him to be represented by his next, friend and natural guardian and for allowing the said next friend and natural guardian to sign the plaint, vakalatnama and other necessary documents. Objections were taken by the Petitioners to the above application for amendment. Eventually, by his order, dated September 16, 1968, the learned trial Judge allowed in substance the above application for amendment of plaint and dismissed the Petitioners' application under Order 32, Rule 2 of the Code of Civil Procedure. It is against this order that the present Rule was obtained by the Petitioners. On the facts appearing from the records, it is clear that this is not a case where the alleged minority of the Plaintiff No. 4 appears on the face of the plaint. On the authority," therefore, of the decision of this Court (1886)I.L.R. l3CaI. 189, this will not be a case which will be covered by Order 32, Rule 2 of the Code of Civil Procedure and, in that view, the dismissal of the Petitioners' application under the said statutory provision may well be supported. It appears also that under the said decision it is open to the Court to allow a minor Plaintiff to be represented by his next friend and remedy the defect and cure the irregularity. In substance, that is what has been done by the Court below by its order allowing the opposite parties' application' for amendment of plaint. We would, accordingly, uphold the said order. As, however, it appears from the records that the Petitioners' application, filed on February 9, 1968, with the allegation that the minor Plaintiff's signatures on the plaint and vakalatnama were forgeries, has not been dealt with or disposed of attention of the Court below is drawn to that fact and the Court below is directed to dispose of the said application in accordance with law. It also appears to us that, having regard to the Petitioners' above allegation, it will be proper to give opportunity to the Petitioners to apply, if so advised to the Court below, for appropriate relief on the basis of the same in accordance with law and, if any such application is made, the learned trial Judge will deal with the same and dispose of it in accordance with law.
(3.) Subject to the above observations, this Rule is discharged. There will be no order as to costs in this Rule. Let the records go down as quickly as possible.
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