ORDER
Munikanniah, J.
1. In this matter, which has been brought up by the office before this court, a question of procedure of considerable importance is involved.
2. A few facts leading to the posting of the matter before the Court may be stated O.S. No. 44/1, of 1958 was filed by Saiganti Mukaraiah against Ravula Somaiah in the Additional Munsif Magistrate’s Court, Warangal, and ended in a decree in favour of the plaintiff. On appeal, the learned District Judge, Warangal, confirmed the judgment. Thereafter S. A. No. 203/1958 was filed by tile defendant R. Somiah. Pending the second appeal, the appellant died.
Thereafter the present application C. ML P. No. 391 of I960 has been filed by the 4 sons and one daughter of the deceased, who are minors, through their next friend. The office insisted upon filing this application along with the guardian petition. It is pointed out on behalf of the petitioners that it is not necessary that the guardian should act for the minors in an application to bring on record the minor legal representatives of the deceased appellant
3. The question, therefore, is whether the legal representatives of an appellant, who are minors need be represented by a guardian in filing an application to bring them on record as the legal representatives of the deceased appellant or the next friend of the minor legal representatives of the deceased appellant could validly make an application for bringing the minors as the legal representatives.
4. It may be stated) that both the counsel ferine petitioner and the respondent are agreed in advancing the argument that any one who seeks to be the next friend of the minor legal representatives could act for the minor in filing such an application. Mr. Ali Adil for the petitioner referred to Rule 1 of Order 32, C. P. C. which is in respect of a suit by a minor and stated that even though there is no corresponding provision as such in respect of an appeal by a minor the same procedure applied. That rule is in the following terms:
“Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.”
5. There is no specific provision either in the Code of Civil Procedure or the Civil Rules of Practice or in the Appellate Side Rules of the High Court, which has directly a bearing on this question. Also having regard to the fact that as in the instant case it is not the filing of appeal by any minor appellant that arises for consideration but the bringing of the minor legal representatives of the deceased appellant that falls to be considered, the question has necessarily to be decided in my view with reference to the provisions which are applicable to cases of death of an appellant and of saving the appeal from abatement-
To such cases Order 22 C. P. C. would certainly be attracted. Rule 1 of Order 22 postulates that the death of a plaintiff or the defendant shall not cause the suit to abate if the right to sue survives and the reason of this rule is also made applicable even to the case of the death of an appellant as Rule 11 of the same order provides for it, Rule 11 states :
“In the application of this Order to appeals, so far as may be, the word ‘plaintiff’ shall be held to include an appellant, the word ‘defendant’ a respondent, and die word ‘suit an appeal.”
The only condition on which the suit or appeal is made not to abate is that the right to sue should survive. But that is not in dispute in the instant case. Then the further question which arises is whether the application to bring the legal repretsentatives of the deceased appellant on record should be by a guardian appointed by the court after an application is made to it for such appointment, or by whosoever chooses to act as the next friend of the minors.
To answer this, a reference to Rule 5 of Order 32 would, in my view, be pertinent. Mr. Ali Adil also relies upon this rule. Rule 5, Sub-rule (1) of Order 32 which is relevant provides “every application to the court on behalf of a minor, other than an application under Rule 10, Sub-rule (2), shall be made by his next friend or by guardian for the suit.”
It would thus be seen that either the next friend or the guardian is competent to file an application on behalf of the minor to bring the minor legal representatives on record. The only exception to this rule seems to be the application to be filed by any person interested in the minor for the appointment of a new next friend in the circumstances mentioned in Rule 10, Sub-rule (2) of that Order.
Reading Sub-rule (1) of Rule 5 as a whole and also remembering that there is no restriction to this rule so as to confine the operation of this rule to the filing of appeals by minors only, but is made applicable to every application to the court, I am inclined to hold that within the ambit of this rule, an application for bringing the minor legal representatives of an appellant also falls. Thus understood, it cannot be said that the Civil Procedure Code does not lay down a procedure for filing such an application by the next friend for bringing the minor legal representatives on record.
6. It is next necessary to have to notice one other contention raised by the office which seeks to make a distinction between plaintiff-appellant and the defendant-appellant as the case may be. The contention is put forward in the following manner. Pointing to Sub-rule (3) of Rule 3 of Order 32, which says
“where the defendant is a minor, the court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for the minor”
and also to Rule 57 of the Appellate Side Rules of the High Court, it is contended that since on behalf of a defendant or a respondent in an appeal it is the guardian that can act and not the next friend, the position of a defendant, who is a minor could not be different when he appeals against the suit which went against him.
But this, in my view is an argument based on an analogy which does not fit in or lend assistant to the contention, because the rules referred to already, specifically provide also for that contingency. Further, the importance of the principle of not insisting upon the plaintiff or the appellant having a guardian appointed before seeking a remedy in the court would be lost, if every minor is asked to seek a guardian and get him appointed through a court and then think of filing the suit or appeal.
It is in this purpose, therefore, of not creating unnecessary obstacles in the way of a minor plaintiff or the appellant readily getting the remedy by way of filing the suit or the appeal, that the raison d’etre consists. It will not, therefore, be proper to impose restrictions on this privilege conceded to any next friend to act for the minors, either in the matter of filing the suit or appeal or making an application on behalf of the minors. This view, in my opinion, also finds support in the language in which Rule 57 of the Appellate Side Rules of the High Court is couched.
Rule 57 specifically refers only to the case of the guaidian to be appointed for a minor respondent and does not pertain to the case of a guardian of a minor appellant. Further, the absence of any provision in the Appellate Side Rules for the appointment of a guardian for a minor appellant’ is conspicuous. This lends further support to the policy underlying the procedure that no minor plaintiff or an appellant should be restricted in coming before the court, or, for the matter of that, any minor making any representation through an application.
7. For the reasons stated above, I consider
that the office cannot insist on any minor appellant
filing an application for the appointment of a guardian when an application is made through his next
friend for bringing on record minors as the legal
representatives of the deceased appellant. C. M. P.
391/60 will therefore be proceeded with.
