Decided on August 06,1997

BEHARI LAL Respondents


P.K,PALLI,J. - (1.)This second appeal has been filed by the defendants, who are aggrieved against the judgment of reversal, parties hereinafter in this judgment shall be referred to as plaintiff and defendants.
(2.)Defendant No. 2 has also filed an application i.e., CMP NO. 220/1997 under Order 32 rule 12 of the Code of Civil Procedure with the prayer that he wants to proceed with the defence of the suit as well as in the appeal as he has atained majority and his guardian, who is his father, be ordered to be discharged. Another application has been filed by this very defendant i.e., CMP No. 221/1997 under Order 6 rule 17 of the Code of Civil Procedure that he be permitted to amend the written statement filed by his father and guardian on his behalf as the father had not properly defended him and many important pleas which were essential to be raised in the written statement have not been raised by him. This application has been vehemently contested by the other side. After having heard learned counsel for the parties and on careful perusal of Order 32 rule 12 of the Code of Civil Procedure, I am of the considered opinion that the application is not maintainable under the said provisions. On my pointedly asking the learned counsel to point out any provision in the Code of Civil Procedure wherein such an application with this prayer can be entertained. No satisfactory reply has been given. In rule 12 of Order 32, it is open only to the minor plaintiff on attaining majority to elect whether he would proceed with the suit and in case he elects to proceed as such, he would then apply for an order discharging a next friend and for leave to proceed in his own name. The application is, thus, not maintainable and is ordered to be rejected.
(3.)Since the application under Order 32 rule 12 of the Code of Civil Procedure has been dismissed, application seeking amendment cannot be entertained unless the other application moved by the defendant is allowed, consequently, this application is also ordered to be rejected and the appeal is being disposed of on merits.

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