ORDER
1. Application No. 89 of 1985 was origin ally filed by the plaintiff in the suit C.S. 139/83 namely . Minor Perumal represented by his guardian and next friend his mother A. Rajeswari (since declared as major) against the defendants in the suit for setting aside the order dated 22-11-84 in C.S. 139/83 dismissing the suit, and for restoration of the suit to the file of the Original Side of this Court. Application No. 1739/86 is filed by the first defendant in the suit C.S. 139/83 to dismiss the Application No. 89/85 on the ground that it is not maintainable. Since both the applications are connected, both are taken up together for disposal and the parties are referred to as per their rank in Application No. 89 of 1985.
2. The facts of the case are briefly as follows:- The applicant filed the suit C.S. 139/83 for specific performance on the basis of an agreement by which the first respondent/first defendant agreed to sell the suit property to the applicant for a sale price of Rs. 1,10,000/-. In December, 1983, a consent memo was filed into Court signed by the applicant and the defendants in the suit, containing the following salient features: –
1. The first defendant/first respondent agrees to execute and register a sale deed in respect of the suit property for a consideration of Rs. 1,60,000/- as per the draft sale deed attached to the consent memo, in view of the guideline value, before the Sub-Registrar;
2. The first respondent acknowledges the payment of Rs. 30,000/- already paid as advance and the applicant shall pay Rs. 20,000/- at the time of execution of the deed of sale and the balance of Rs, 1, 10,000/before the Sub-Registrar at the time of registration of the deed of sale, by a bank draft;
3. On execution of the sale deed, the first respondent will apply for and obtain Incometax clearance certificate for registration of the sale deed.
4. The first respondent will handover the original documents of title relating to the property at the time of execution of the deed of sale to the Advocate for the purchaser (Applicant);
5. The applicant shall settle the claims of the petitioner in I.P. 39/79 on the file of the High Court, Madras, with a view to obtain clear title in respect of the property agreed to be conveyed. The amount to be paid in this regard shall be paid by the applicant on his own accord and no part of the same shall be deducted out of the sale consideration;
6. The second and third respondents viz., the defendants 2 and 3 respectively, agree to furnish affidavits of declaration, declaring that the property solely and absolutely belonged to the first respondent and that the second and third respondents have no right and that the first respondent has power to sell the property to the applicant;
7. The respondents agree that they will not claim the rents from the present tenant in occupation for the past or in future;
8. The applicant will also pay a further sum of Rs. 20,000/- to the first respondent at the time of execution of the deed of sale, towards the cost of fixtures; fittings, etc.
9. On the registration of the deed of sale, the applicant shall be entitled to report the suit as settled out of Court and shall be entitled to obtain refund of half court-fee paid on the plaint;
10. Each party has no claim against the other except as per this memo of consent;
11. The applicant agrees that he shall complete the transaction within a period of six months from the date of the consent memo and time is essence of this transaction.
The consent memo is dated 27-12-1983. The case of the applicant is that the first respondent failed to execute and register the deed of sale in favour of the applicant and hence the question of reporting the suit as settled out of Court did not arise and the suit had to be continued.
3. In the affidavit filed in support of the application No. 89 of 85 it has been averred as follows : – On 22-11-1984, one Srinivasan, clerk of Mr. Subbiah, Advocate, came to the house of the applicant next friend and told her that another O.P. case filed by her was coming for hearing in the City Civil Court and that the Advocate asked him to get the signatures of the applicant in two papers since the signatures were required in respect of the said O.P. case. When she told him that her husband was not in town, he mentioned that the signatures are urgently required on that day and that the said O.P. will be dismissed unless the applicant signs the papers as required. The applicant’s next friend believed the words of the clerk and put her signatures in the two papers brought. She did not know the contents and she cannot read English or Tamil. She cannot write in English or Tamil but can put only her signature in Tamil. She told her husband what had happened when he returned after a week. Thereupon he contacted Mr. Subbiah, Advocate, who told him that he had sent the clerk to obtain the signatures referred to above for the O.P. matter in the City Civil Court. It was the husband of the applicant’s next friend who had engaged the counsel on her belief. The applicant’s next friend had not seen or met Mr. Subbiah in the case or the other Advocate Mr. Srinivasalu who entered appearance. The husband of the applicant’s next friend informed her that his usual counsel Mr. Subbiah suggested the, name of Mr. Srinivasalu, saying that he could not appear in the matter but that he would be in full charge of the case. On 20-12-1984, the applicant’s next friend came to know through her husband that the suit has been dismissed. She was greatly shocked when she heard that the suit was dismissed. Her husband had also told her that he had met Mr. Subbiah, Advocate, and had asked him about the dismissal of the suit. The Advocate told him that the applicant’s next friend had received the amount and put the signatures to which her husband replied that this statement was not at all correct, as no amount was indeed received and that this statement was contrary to what he had conveyed earlier when he had stated that the signatures were with reference to the O.P. matter. The statement of the Advocate that the applicant’s next friend had received the amount and put her signature is false. The applicant’s next friend never received any amount. On 20-12-1984 she came to know through her husband that the suit property had been sold by the first respondent to a third party.
4. The two signatures obtained in the two papers were not for the O.P. matter but for the purpose of getting the suit that was pending before this Court dismissed. The applicant’s next friend signed the two papers on the bona fide impression and belief that the same were required for the O.P. purposes, as so represented by the said clerk. She was induced to sign the two papers by fraud of the clerk and that she did not know that it was a memo for dismissal nor she knew the contents of other papers signed by her. Subsequent events now reveal that the clerk sent by the Advocate for obtaining the signatures of the applicant’s next friend played fraud on her and had obtained signatures by gross-misrepresentation. The clerk who was sent had concealed the fact that the signatures were, going to be used for the dismissal of the suit. The statement made by him that the same was required for the O.P. purposes was false He had deliberately misrepresented an obtained the signatures under a false preemie further suppressed the fact that they were going to apply for the dismissal of the suit. Thus the whole thing was conceived in fraud having been done in a hush manner behind the back of the applicant’s next friend and her husband and without their knowledge. The further events also reveal that the dismissal of the suit was indeed planned in advance and to that end the signatures of the applicant’s next friend were obtained by false representation with a view to getting the suit dismissed.
5. It is also significant to note that the property was sold by the first respondent in favour of one Parvathi Ammal even during the tendency of the suit behind the back of the applicant’s next friend even after the consent memo which was exchanged between the parties. The respondents were interested in getting the suit taken off, for their own purposes. Fraud has been played on this Court in that it was also not brought to the notice of this Court about the rule to obtain leave for the abandonment or withdrawal of the suit under proviso to R. 1 of O. 23, C. P.C. and to O. 32, R. 7. Sanction of the Court is necessary. According to law the next friend of the minor shall not abandon or withdraw the suit without obtaining the leave supported by proper affidavit. In the instant case, in any event, the dismissal of the suit is nothing but abandonment of the suit itself, as the suit has been dismissed without liberty being reserved, the net result being that the applicant cannot institute a fresh suit. Even if this amounts to withdrawal, it shall not be done without the leave of the Court. Therefore judged by any angle, the order of dismissal brought about by the methods referred to above and also without obtaining leave, will be null and void. The Court would have protected the minor’s interests, if the vital statutory requirement was brought to its notice and it is by suppressing these essentials, and by practicing fraud on the applicant’s next friend by signatures obtained under false pretext and misrepresentation the dismissal of the suit was brought about. The applicant’s Advocate was not permitted to file memo for dismissal of the suit and the dismissal has gone against the interests of the minor plaintiff and has resulted in gross injustice. Hence the applicant prays for setting aside the said order and for restoring the suit to the file for disposal according to law.
6. The first respondent filed a counter affidavit contended as follows :- The averments in the affidavit filed by the next friend of the applicant are denied. The parties settled the dispute outside the Court and a consent memo was prepared and signed by the applicant’s next friend and the respondents 1 to 3 herein and also by the counsel for the applicant and the first respondent. Since the applicant’s next friend was not in a position to pay the balance of the sale consideration the father of the applicant arranged for the sale of the suit property in favour of a third party. On account of this arrangement, the applicant gained substantial benefit. The contention that the question of reporting the suit as settled out of Court did not arise and the suit was continuing is incorrect and untenable. The application is not maintainable in law. The applicant even on the averments in the affidavit cannot seek to restore the suit. The application is an abuse of the process of Court. Having reported the suit as settled (out ?) of Court by filing a memorandum signed by the Applicant’s next friend and the applicant’s counsel, it is not open to the applicant to seek relief prayed for in the application. The suit having been reported as settled out of Court, the decree passed by this Court is valid in law and cannot be re-opened on any account. The signatures of the applicant’s next friend in the memo filed before this Court are admitted. Since valid memo has been filed, knowing the implications thereof the applicant is not entitled to any relief in this application. The first respondent is not aware of the alleged O.P. proceedings and as to whether the applicant has anything to do with the same. It is the husband of the applicant’s next friend who introduced the purchaser to the first respondent and the sale transaction was finalised and put through by Mr. N. S. Varadachari, Advocate, High Court, Madras. It is Arumugham, the husband of the applicant, who received various amounts in excess of the consideration already agreed to be paid by him under the memorandum of consent. In addition to that, rents payable in respect of the property which was in possession of the said Arumugham was not paid and the rents from 1981, amounts to more than Rs. 40,000/-. After considering the interest and welfare of the minor applicant, his mother and father settled the dispute outside the Court and withdrew the case and made arrangements for withdrawing the case as settled out of Court, so that they may have the benefit of half the court fee paid on the plaint. The allegation that the applicant’s next friend and her husband came to know about the sale of the suit property and registration of the sale deed only on 20-4-1984 is false. In fact, the applicant’s next friend and her husband delivered possession of the property to the purchaser on the date of registration of the sale deed and the purchaser is now in possession of the property. The applicant’s husband Arumugham has already indulged in a suit O.S. No. 9227 of 1984, for an injunction restraining the first respondent and the purchaser from interfering with his possession of the suit property as if he is in possession. The’ address given by the applicant in this affidavit as well as the address given by her husband in the suit filed before the City Civil Court will show that they are not in possession of the property and they vacated and delivered possession of the property to the purchaser. There is no defect in either reporting the suit as settled out of Court or in the order passed by* this Court on the basis of the memo filed by the applicant’s next friend. The proceedings are perfectly valid in law. It is idle on the part of the applicant’s next friend to state that she never received any amount. Having received the amount and having reported the suit as settled out of Court, the applicant is now not entitled to seek restoration of the suit. The allegation that there was fraud and misrepresentation is false. The further allegation that the signature of the applicant’s next friend was obtained by misrepresentation is false.
7. Though the applicant’s next friend and her husband agreed to pay the amount to Careful H. Bhandari and get the I.P. No. 39 of 1979 withdrawn, they did not pay the amount and the first respondent had to pay the said amount to enable the purchaser to obtain good title to the property. This was done with the knowledge, consent and concurrence of the applicant’s next friend and her husband. The sale of the property was done at the instance of the applicant’s next friend and her husband and with their full knowledge, consent and concurrence and the applicant had the benefit of the amounts which was received, by the applicant’s next friend and her husband. The allegation that the applicant’s next friend had no authority to file a memo for the dismissal of the suit is not correct. The allegation that the minor plaintiff will be otherwise put to loss and damage is untenable. The contention that the interest of justice and equity require that this Court should intervene and protect the interest of the minor applicant by setting aside the order of dismissal is incorrect and untenable. The application No. 89 of 1985 is not maintainable in law. The property has already been sold to a third party and the proceedings in this suit had come to an end. If it is re-opened there is a likelihood of multiplicity of proceedings and complications which was never envisaged. The scope of the suit also will be unnecessarily enlarged and the applicant is not entitled to repaginate the matter in any event having reported the same as settled out of Court. The first respondent, therefore, prays for the dismissal of the application No. 89 of 1985.
8. The minor applicant, namely A. Perumal was born on 27-5-1967, and hence he attained majority on 28-5-1985. He filed an application No. 2938 of 1985, stating the fact that he had attained majority and for declaring him as major and for discharging his mother from guardianship. In the affidavit filed in support of the said application the minor applicant stated that his guardian had abandoned the suit without the leave of Court as required under 0. 32, R. 7, C.P.C. and hence the order of dismissal on the strength of the memo filed by his next friend should be set aside. The said A. Perumal had also elected to proceed with the suit and to obtain the necessary reliefs. In the application No. 2938 of 1985, the following order was passed on 29-8-1985.
“The respondents have no objection. Hence this application is allowed, the applicant is declared as major and his next friend is discharged and the applicant is permitted to continue the proceedings. The amendment will be carried out in a week. Call the other applications on 12-9-85.”
Subsequent to the above proceedings to declare the applicant as major, the first -respondent filed the, Application No. 1739 of 1986 under (Order ?) 14, R. 8 of the Original Side Rules and S. 151, C.P.C. praying for the dismissal of the Application No. 89 of 1985, as not maintainable. In the affidavit filed in support of the said application it is stated that since the applicant had attained majority and had been declared as major it is not open to him to prosecute the above application and the only remedy open to him is to file a separate suit and hence the Application No. 89 of 1985, it is not maintainable and is liable to be dismissed;
9. In the counter-affidavit filed an Application No. 1739 of 1986, by A. Perumal the erstwhile minor, it is stated that R. Jayaram, the first defendant in the suit brought about the dismissal of the suit by practicing fraud on the Court as stated in the affidavit filed in support of Application No. 89 of 1985. In view of the fact that he had been declared as major. He is permitted to continue the proceedings. The first respondent after stating that he has no objection to the applicant being declared as major and the Court having passed an order declaring the applicant as major and permitting him to continue the proceedings. It is not open to the first respondent to come forward with this Application No. 1739 of 1986, for dismissal of the application No. 89 of 1985. The applicant fully endorses the contentions raised by his mother and next friend and hence the contentions raised by his mother as well as the one raised by him that the compromise entered into during the pendency of the suit does not bind him since the same had been repudiated will have to be gone into in the suit and hence the Application No. 89 of 1985 is maintainable.
10. The points for determination in both the above applications are as follows : –
1. Whether the applicant is entitled to have the order of dismissal of the suit C.S. No. 139 of 1983, set aside on attaining majority and prosecute the same to its logical end ?
2. Whether contention of the respondent that the, applicant can only institute a fresh suit is correct ?
Points Nos. I and 2
11. On a perusal of the records relating to the suit C.S. No. 139 of 1983, it is seen that the consent memo Ex. P-2, the contents of. which are extracted above, signed by both the parties to the suit and their counsel on 2712-1983, had been exchanged between the parties. The applicant’s next friend is purported to have filed a memo into Court marked as Ex. P-3 which is to the following effect : –
“1. The subject-matter of the above suit had been settled among the parties outside the Court. So, there is no necessity to continue the prosecution of the suit and the suit may be dismissed as settled out of Court. In view of the settlement out of Court, the court-fee paid on’ the plaint may also be ordered refunding half the court-fee.
It is therefore prayed that this Humble Court may be pleased to dismiss the suit as settled out of Court and also to refund half of the court-fee paid on the plaint to Mr. G. V. Srinivasulu, counsel for the plaintiff’.
The said memo was filed into Court on 22-111984, on the filing of this memo the suit C.S. No. 139 of 1983, had been dismissed. It is to set aside the order of dismissal and restore the suit to the file of the Original Side of this Court Application No. 89 of 1985 is filed by the applicant’s next friend. During the tendency of Application No. 89 of 1985, the applicant was declared as major as per the order dated 29-8-1985 in Application No. 2938 of 1985, and he was permitted to continue the proceedings. In this case it is obvious that while filing the memo dated 22-11-1984 for dismissing the suit as settled out of Court, the applicant’s next friend had not obtained the leave of Court. Under 0. 23, R. 1, C.P.C. if the plaintiff is a minor the suit claim cannot be abandoned without the leave of the Court. The said provision is extracted below : –
(l) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim.
Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rs. I to 14 of 0. XXXII, extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) x x x x x". Order 32, Rule 7, C.P.C. dealing with an agreement or compromise by next friend or guardian in the suit also reiterates the same principle and the same is as follows : - 7(l) No next friend or guardian for the suit shall, without the leave of the Court expressly recorded in the proceedings, enter into any .agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. (1-A) An application for leave under sub. (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed, in his opinion, for the benefit of the minor. Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is for the benefit of the minor. Madras High Court Amendment.,
(I-A) Where an application is made to he Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a compromise or for taking any other action on behalf of a minor or other person under disability and such minor or other person under disability is represented by counsel or pleader, the counsel or pleader shall file in Court with the application a certificate to the effect that the agreement or, compromise or action proposed is, in his opinion, for the benefit of the minor or other person under disability. A decree or order for the compromise of a suit, appeal or matter to which a minor or other person under disability is a party, shall recite the sanction of the Court thereto and shall set out the terms of the compromise, as in Form No. 24 in Appendix D to this Schedule.
(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be avoidable against all parties other than the minor.
From the above said two provisions it is clear that the next friend of a minor plaintiff can enter into a compromise or withdraw the suit claim only after obtaining the leave of Court. What is to happen to compromise or withdrawal made by the next friend without the leave of Court is set out in 0. 32, R. 7, sub-rule (2) which states that any such agreement of– compromise entered into without the leave of the Court shall be avoidable against all parties other than the minor.
12. Mr. Chellaswamy, learned counsel appearing for the applicant, contends that inasmuch as the next friend of the minor had not obtained the leave of Court for the withdrawal of the suit, the dismissal of the suit on the strength of the memo will have to be set aside. For this proposition he relied upon the case reported in Rajagopal Takkaya Naicker v. Mutupalem Chetti, (1881) ILR 3 Mad 103 where a Division Bench of this Court observed as follows : –
“The provisions of S. 462 (Corresponding provision for 0. 32 in the old Code) of the Civil Procedure Code are intended to protect the interests of minors. They declare that no guardian ad liter shall enter into any compromise without the leave of the Court, and by implication require the Court to consider whether the proposed compromise should be sanctioned. The circumstance that the Court has passed a decree on the alleged compromise is not a substantial compliance with the provisions of S. 462.
When it is brought to the notice of the Court that the compromise has not received its sanction, the Court ought to set aside the decree.”
Learned counsel for the applicant also relied upon the case reported in Jadumani Naik v. Jyostna Naik, , where a single Judge of the Orissa High Court expressed the view that in respect of a compromise any leave granted without an affidavit to the effect that the compromise is for the benefit of the minor was not in accordance with law and the permission granted is invalid and the compromise is vitiated. Learned counsel for the applicant also relied upon the case reported in Ramanathan Chettiar v. Veerappan Chettiar, (1955) 2 Mad LJ 602 : AIR 1956 Mad 89 where it has been observed. as follows : –
“Under 0. 32, R. 7 of the Code of Civil Procedure a suit by or against a minor can be compromised only with the leave of Court on application made in that behalf. Sub-r. (1-A) of R. 7 of the said order, introduced by the Madras amendment, lays down the essential formalities to be gone through before such leave can be granted. The first requirement is that along with an application for leave to enter into an agreement or compromise on behalf of a minor, where such a person under disability is represented by a Counsel ‘ the counsel shall file into Court a certificate to the effect that the compromise is for the benefit of the minor. The rule further provides that the Court should in its decree or order recite that sanction has been granted and set out the terms of the compromise. Unless the Court grants permission there is no compromise at all so far as minors are concerned and there is nothing on record on which a decree could be passed.”
Relying on the above observation Mr. Chellaswamy contended that the withdrawal of the suit by the applicant’s guardian without obtaining the leave of Court in the manner provided in the Code of Civil Procedure is null and void and that the said withdrawal is not binding on the minor and the minor is entitled to proceed with the suit C.S. No. 139 of 1983.
13. The provision contained 0. 32, R. 7, sub-r. (2) that such compromise or withdrawal made by the guardian of the minor without the leave of Court is avoidable against all other persons and void in so far as the minor is concerned is interpreted by the Supreme Court in the decision reported in Kaushalya Devi v. Bijnath Sayal, . In the course of the Judgment, the Supreme Court observed as follows – –
“The effect of the failure to comply with 0. 32, R. 7(l) is specifically provided by 0. 32, R. 7(2) which says that any such agreement or compromise entered into without the leave of the Court so recorded shall be avoidable against all parties other than the minor. Mr. Jha reads this provision as meaning that the’ impugned agreement is avoidable against the parties to it who are major and is void in respect of the minor; in other words, he contends that the effect of this provision is that the major parties to it can avoid it and the minor need not avoid it at all because it is a nullity so far as he is concerned. In our opinion that contention is clearly inconsistent with the plain meaning of the rule. What the rule really means is that the e impugned agreement can be avoided by the minor against the parties who are major and that it cannot be avoided by the parties who are major against the minor. It is avoidable and not void. It is avoidable at the instance of the minor and not at the instance of any other party. It is avoidable against the parties that are major but not against a minor. This provision has been made for the protection of minors, and it means nothing more than this that the failure to comply with the requirements of 0. 32, R. 7(l) will entitle a minor to avoid the agreement and its consequences. If he avoids the said agreement it would be set aside but in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest. The protection of the minors’ interest requires that he should be given liberty to avoid it. No such consideration arises in respect of the other parties to the agreement and they can make no grievance or complaint against the agreement on the ground that it was not complied with 0. 32, R. 7(l). The non-observance of the condition laid down by R. 1 does not make the agreement or decree void for it does not affect the jurisdiction of the Court at all. The nonobservance of the said condition makes the agreement or decree only avoidable at the instance of the minor. That, in our opinion, is the effect of the provision of 0. 32, R. 7(l) and (2).”
The Supreme Court disagreed with the contention that the failure to comply with the requirements of 0. 32, R. 7(2) makes a decree nullity. In view of the above said decision it is clear that the withdrawal of the suit by the next friend of the minor without obtaining the leave of Court as provided in 0. 23, R. 1 and 0. 32, R. 7, C.P.C. is avoidable at the instance of the minor and not void.
14. The next question to be considered is whether the applicant after attaining majority is bound to prove the alleged fraud perpetrated by the first respondent as set out in the application, in order to have the order of dismissal of the suit set aside. If the applicant’s next friend is to prosecute the Application No. 89 of 1985, then she may not be entitled to the relief prayed for unless she proves the fraud alleged in the affidavit. But the attainment of majority of the minor applicant brought about a change in circumstance and we will have to consider whether he is bound to prove fraud in order to obtain the relief prayed for in application No. 89 of 1985. The provision contained in 0. 32 as interpreted in the above decisions clearly lays down that the withdrawal of the suit by the next friend of the minor without the leave of Court can be avoided by the minor on attaining majority. The fact that no premium was obtained is not disputed. Under the circumstances the applicant on attaining majority is entitled to have the dismissal as a result of the withdrawal of the suit set aside on the ground of failure to obtain the leave of Court for such withdrawal by the next friend of the minor. No further proof of fraud is necessary in so far as the minor applicant is concerned. Hence the applicant after being declared as major is entitled to have the order of dismissal of the suit set aside and continue the proceedings in the suit to its logical end.
15. The next friend of the minor has filed the Application No. 89 of 1985 on the allegation that the signature in the memo for withdrawing the suit was obtained from her by fraud and on that account she prays for the restoration of the suit. If the next friend proves fraud as alleged in the application then the withdrawal cannot be said to be lawful as per the decision reported in Maimun Nisa v. Mohammad Khodabin, . When the next friend of the minor applicant was examined with reference to the fraud which she alleged was perpetrated on her and when the matter was part heard, the minor applicant attained majority. Fraud need be established only by the next friend of the minor to set aside the dismissal. But in so far as the minor applicant is concerned, the non-compliance of the provisions of 0. 32, will enable him on attaining majority to avoid the withdrawal of the suit. Hence the learned Advocate for the applicant did not pursue the point with reference to fraud and advanced his argument on the noncompliance of provisions contained in 0. 32, C.P.C. Hence no finding need be given with reference to fraud perpetrated – on the applicant’s next friend.
16. The contention of the respondent is that the applicant can only file a separate suit on attaining majority and he is not entitled to continue the present suit. This contention also cannot be entertained since the proceedings in application No. 89 of 1985 are filed on behalf of the minor applicant by his next friend and on attaining majority the minor is not bound by the memo of withdrawal filed by the next friend without complying with the provisions contained in 0. 32, C. P.C. The very non-observance of the provisions of 0. 32 by the next friend will entitle the minor applicant to avoid the memo of withdrawal of the suit filed by the next friend and as a logical consequence the dismissal of the suit C.S. No. 139 of 1983 in pursuance of the memo is set aside. The applicant is entitled to prosecute the suit C.S. No. 139 of 1983.
17. In view of the above reasoning the application filed by the respondent viz. Application No. 1739 of 1986, for dismissal of the application No. 89 of 1985, on the ground that the applicant is only entitled to file a separate suit is not maintainable.
18. In the result application No. 89 of 1985 is allowed, the dismissal of the suit C.S. No. 139 of 1983 is set aside and the applicant is permitted to continue the suit filed by his next friend to its logical end. The suit C.S. 139 of 1983 is directed to be restored to the file of the Original Side of this Court after notice to both the parties and proceed with to its logical end. Consequently Application No. 1739 of 1986 is dismissed. There will be no order as to costs in both the applications.
19. Order accordingly.