JUDGMENT
1. The three connected appeals before us arise out of one single suit This was filed by Ruhul Amin the appellant before us, as long ago as the 4th of March 1916. The object was to set aside a transfer purporting to have been effected by a sale deed of November 16, 1906, executed by various persons and amongst others by the mother of the plaintiff, who purported to act on behalf of the plaintiff, then a minor, as his natural guardian. There was a long array of defendants including numerous subsequent transferees on the property concerned. In the written statements of at least two of these defendants the joint was taken that the plantiff had attained majority prior to the institute on of tie suit, and that the plaint purporting to be signed and verified on his behalf by a next friend, namely the father’s sister’s son of the plaintiff, was not valid in law, and that there had been no valid presentation of the plaint. It is impossible for us to say why the Trial Court ignored these pleadings at the time of the settlement of the is sues, Both parties are to blame for not having misted upon an issue being struck on a pleading of this nature which went to the very root of the case. The plaintiff in particular finding it alleged against him that the suit was not even lawfully before the Court, should have in our opinion taken prompt action. He could either have accepted the plea regarding his n majority as true in fact and asked permission to present the plaint formally to the Court him self after making the trifling amendment which would have been necessary, or if he desired to stand by the allegation of his in mority he should have asked for an issue on the point. In the result the Trial Court went into the merits of the case and decreed a part only, though a substantial part, o’ the plunt it’s clam.
2. There were three appeals filed, one by the plaintiff him self, and one by each of two sets of defendants who were dis-satisfied with the decision of the Trial Court. The defendants who appealed again made it a ground of objection in the lower Appellate Court that there had been no valid plaint presented to the Trial Court, and that the whole of the proceedings of that Court were vitiated by this defect. The lower Appellate Court entertained this plea. It went into the facts of the case and it found that the plaintiff had actually been born in the year 1890, so that he was over 25 years of age when the plaint was filed on his behalf by his father’s sister’s son. The learned Additional District Judge upon this state of facts held that there was an incurable defect in the whole of the proceedings in the Trial Court, that the decree of that Court in favour on the plaintiff was a bad decree. He dismissed the plaintiff’s appeal, allowed the appeals filed by the two sets of defendants and dismissed the suit.
3. It is unnecessary to enquire whether the lower Appellate Court could or could not have substituted for the decree of the Trial Court an order returning the plaint to the plaintiff to be presented again after proper amendment. There is some authority for the adoption of this course in a decision of the Madras High Court, Which has been laid before us but there is no decision of this High Court lending support to such a view of the law. If there was never any valid plaint before the Court, the proper order would seem to be one rejecting the petition tendered as a plaint and leaving it to the plaintiff to take such further actica as he might think proper. In the present circumstances, the question hardly arises, because by the time the learned Additional District Judge came to dispose of the appeals before him the period of limitation even reckoned from the date given in the plant, had expired.
4. The suit having thus been dismissed the plaintiff filed three appeals in this Court which were disposed of by a learned Judge of this Court in a single judgment she learned Judge held that,’ the question of law sought to be raised was concluded, so far as this Court is concerned, by the decision in the case of Sheorania v. Bharat Singh 20 A. 90 : A.W.N. (1887) 203 : 9 Ind. Dec.(N.S.) 417. He dismissed the appeals accordingly.
5. Various points have been raised in argument before us. The first was with reference to a later decision of this Court in the case of Basdeo v. John Smidt 22 A. 55 : A.W.N. (1899) 172 : 9 Ind. Dec. (N.S.) 1068. There are expressions in the judgment in that case which are inconsistent with some of the principles on which the decision in Skeorania v. Bharat Singh 20 A. 90 : A.W.N. (1887) 203 : 9 Ind. Dec.(N.S.) 417. appears to proceed but the two cases are in their essence quite distinct. In Basdeo case 22 A. 55 : A.W.N. (1899) 172 : 9 Ind. Dec. (N.S.) 1068. the learned Judges were at pains to point out that there was before the Court a plaint which had been validly presented by an Advocate of the Court, in whose favour there existed a clear presumption that he had authority to present the plaint. This being so the only question was whether an alleged defect in the matter of signature or verification was or was not curable under the provisions of sect on 578 of the then Code of Civil Procedure, corresponding with sect on 99 of the present Code. In the case before us the point taken against the plaintiff essentially Was and is, that his plaint had never been validly presented to the Court That it had not been so presented seems obvious upon reference made to the provisions of Order IV, Rule 1 and Order 111, Rules 1 and 2 of the Code of Civil Procedure. A defect of this sort can scarcely be regarded as a defect in or proceeding in a suit within the meaning of sect on 99 of the Code of Civil Procedure and in any case it is a plea which affects the jurisdiction of the Court. The Trial Court had no jurisdiction to entertain the suit at all, except upon a plant properly presented and it ought to her gone into the question of the presentation of the plaint and determined it before it proceeded to try the suit.
6. The next substantial point argued before us is with, reference to a petition, presented on behalf of the plaintiff to the Trial Court, through Counsel purporting to be duly authorized in his behalf. The date of the presentation of this petition appears to have been the 13th of November 1917, though it is stated as the 13th of April 1917 in the order under appeal The petition was to the effect that the plaintiff having now attained majority desired to prosecute the suit in his own no me and asked the Court to pass the formal orders necessary to enable him to do so. It was within the knowledge of the Trial Court that a certificate of guardianship had at onetime been granted by the District Judge in favour of tie plaintiff’s mother in respect of the person and property of the plaintiff. One of the incidental difficulties in the case is that the plaintiff’s age was grossly understated in the application on which this certificate of guardianship was ordered to issue. This however does not seem to have any essential bearing on the questions of law before us. What we are now taking note of is the fact that the issue of this certificate of guardianship had been brought to the notice of the Trial Court. When, therefore, that Court received the plaintiff’s application to be permitted to prosecute the suit as a major, it passed an order that the plaintiff should produce for the inspection if the Court the certificate of guardianship or a certified copy of the same. The plaintiff took no further action and never produced the paper called for by the Court. The suit, therefore, went on to trial in the Court of first instance in a wholly irregular manner, without this important application on the part of the plaintiff having been formally disposed of either one way or the other. We are far from satisfied with the procedure followed by the learned Subordinate Judge who tried this suit in the first instance. But we are none the less satisfied that, a considerable degree of blame attaches to the plaintiff or to his legal adviser in that Court for not prosecuting his own case with due diligence, and not obtaining proper orders from the Trial ° Court upon essential points. Under the circum-0 stances we do not think it possible to give the plaintiff any relief as this stage.
7. It has been suggested to us that the plaintiff’s petition of tie 13th of November 1917 might be treated as presentation of the plaint on his behalf by Counsel properly authorised by him. But we are of opinion that under the circumstances it would be stretching the law too far in the plaintiff’s favour to take such a view of that proceeding. The presentation of that petition might have had an effect equivalent to p fresh presentation of the plaint, or might have led to some further proceeding or order on the part of the Trial Court, which would have had that effect, if it had been properly followed up by the plaintiff. But as the case stands we are unable to take this view.
8. The result is that this and the connected appeals fail and we dismiss this appeal with costs including fees on the higher scale.
