Authored By : Mitter, Agnew

Mitter and Agnew, JJ.

1. It is contended on behalf of the respondents that noappeal lies against an order passed under Section 442, but we are of opinionthat although the Subordinate Judge says "that the order in question waspassed by him under Section 442, it was not really an order under that section.Section 442 is to the following effect: "If a plaint be filed by or onbehalf of a minor without a next friend the defendant may apply to have theplaint taken off the file, with costs to be paid by the pleader or other personby whom it was presented. Notice of such application shall be given to suchperson by the defendant; and the Court, after hearing his objections, if any,may make such order in the matter as it thinks fit." That section refersto a case where, on the face of the plaint, it appears that it was filed, by aperson who was a minor. It does not contemplate any enquiry into the questionof minority as in this case, where it is brought by persons professingthem-selves to be adults, and where the defendant objects to the suit on theground that they are not adults but minors, and where, upon these conflictingallegations, an issue is raised for trial. In a case like this the order of theCourt, if it finds that the defendants allegation is correct, is not passedunder Section 442. A case of this nature is not expressly provided for in theProcedure Code, but there are decided cases which show that in a case of thisnature the former practice which, not being abrogated by the present Code, mustbe considered to be in force, was to suspend all proceedings and to allowsufficient time to enable the minor to have himself properly represented in thesuit by a next friend; but be that as it may, the order which has been passedin this case does not appear to us to be an order under Section 442. It is,therefore, not necessary for us to decide the question whether an order underSection 442 is appealable. The present order, although it professes to havebeen passed under Section 442, must be an order rejecting the plaint ordismissing the suit on the ground that the suit was instituted by persons whowere established on the evidence to be minors. Whether considered as an orderrejecting the plaint or dismissing the suit, it would be appealable because itcomes within the meaning of the word decree as given in Section 2 of the CivilProcedure Code, and there is no reason why the words rejecting the plaintused" in Section 2 should be limited to the cases provided for in Sections53 and 54. We are of opinion that the preliminary objection taken before usmust be overruled. Then, as regards the merits of the appeal, it seems to usthat, even if we were inclined to agree with the lower Court that all theplaintiffs were minors at the time when the suit was instituted, still weshould have held that the lower Court was not justified in dismissing the suitupon that ground. We have already referred to the practice that prevailedbefore the new Code of Procedure was passed, and we have already said that thatpractice has not been abrogated by any provision in the Civil Procedure Code.But in this case, taking the finding of the lower Court to be correct, yet, atthe time when the trial took place, the plaintiff No. 1 was admittedly of age,and therefore it would have been unnecessary to suspend proceedings in order toallow him to appear by a next friend. In fact, being an adult, he was competentto proceed with the suit himself. Furthermore, we have referred already to theorder of the 30th of July 1884, by which the plaintiff No. 1 was appointed nextfriend to the two minor plaintiffs. At that time he was of age, and we are at aloss to understand how, in the face of that order, the lower Court dismissedthe whole suit upon the ground that all the four plaintiffs were minors at thetime of the institution of the suit. So far as the plaintiffs Nos. 3 and 4, whowere then admittedly minors, and who are now admittedly minors, are concerned,the suit was not liable to be dismissed, because they were represented by theireldest brother and next friend appointed by an order of the Court. We furtherfind that, when the appeal was preferred to this Court by the plaintiffs, andon that appeal the Court directed the lower Court to allow them to adduce theirevidence, no objection was taken by the respondents on the score of theirminority, That being so, we are of opinion that they were precluded fromrelying upon that objection in the lower Court when the case was remanded tothat Court for trial. If it were necessary to express any opinion upon theevidence given in the Court below, we should be inclined to hold that theconclusion to which the lower Court has come upon that evidence is not correct.The mother of the plaintiffs deposes that the plaintiff No. 1 was, at the timeher deposition was taken, 23 years of age, and the Judge rejects this evidence,although it was supported by a horoscope filed and proved, upon the ground thatit was the uncorroborated testimony of a single witness. He says, referring tothe evidence of the another: "The evidence of Munni Bohu, the mother ofthe plaintiffs, would indeed show the age of these persons to be more than whatthe other witnesses have stated; but the uncorroborated testimony of a singlewitness, especially when rebutted by the evidence on the same side, cannot berelied upon. Munni Bohu indeed is the mother of the plaintiffs, but that is noreason why her testimony should be relied upon, when it is contradicted by theother evidence adduced on the plaintiffs side." The other evidence towhich the Subordinate Judge refers is merely the loose statements of somewitnesses as to the ages of the respective plaintiffs, and from their testimonyit is quite clear that they could not speak with any degree of precision as tothe ages of the plaintiffs. It is a matter of some surprise to find theSubordinate Judge saying that, because Munni Bohu is the mother of theplaintiffs, her testimony is not to be relied upon. A mothers evidence wouldbe the best evidence upon the question of the age of her sons, especially whenthat testimony is supported by the evidence of a horoscope which has beenproduced and proved by a competent witness. The Subordinate Judge should haveaccepted that evidence as fully trustworthy.

2. Upon these grounds we think that the decision of thelower Court is erroneous. We set it aside, and as the defendants evidence hasnot been taken, the case will be remanded to the lower Court.

3. Costs will abide the result.

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Beni Ram Bhutt and Ors.vs. Ram Lal Dhukri and Ors.(30.03.1886 - CALHC)