Authored By : Richard Garth, Henry Stewart Cunningham

Richard Garth, C.J.

1. I think that the learned Judge was quite right and thatwhat occurred at the trial of the former suit estops the plaintiff frombringing this suit.

2. This suit was brought for the purpose of establishing theplaintiffs adoption, and of having the trusts of the will of the late MoheshChundra Safooi declared. The former suit was brought, so far as the plaintiff wasconcerned, with the same object, namely to have his rights declared as theadopted son of Mohesh Chundra. His adoptive mother sued on her own behalf tohave her rights declared under her husbands will, and also as the nest friendof the present plaintiff, to establish his rights as the adopted son, and onepoint raised in the pleadings was as to the validity of his adoption.

3. Then what occurred at the trial was this. We understandthat no evidence was offered; but that the question of the validity of theadoption was argued by the Counsel for the plaintiff upon the plaint as itstood. The statements in the plaint were very full, and it seems to have beenadmitted on the part of the plaintiff that the consent of the sister, NundamoniDassee, was necessary to the validity of the adoption.

4. A long correspondence was set out in the plaint, which,so far from showing any consent on the part of the sister, rather tended, toprove the contrary; and after the point had been fully argued, it seems thatMr. Lowe, the plaintiffs Counsel, seeing that the opinion of the Court wasagainst him, asked leave to withdraw the suit; and, I think, we must presumethat he applied to do so under Section 97 of Act VIII of 1859; because in thenote of what took place, we find that the Judge, though he allowed the suit tobe withdrawn, refused leave to bring a fresh suit. The rule laid down by thatsection has always, as far as we are aware, been acted upon as law on theOriginal Side of this Court, and there is no other rule under which Mr. Lowecould have asked to withdraw the suit and bring a fresh one.

5. That being so, it appears to me that the withdrawal ofthe suit under Section 97 operated (not strictly speaking, as a res judicata),but as a bar to prevent the plaintiff bringing any fresh suit to establish hisadoption.

6. Mr. Bonnerjee has argued that, although the Judge mighthave acted on that occasion upon the rule as laid down in Section 97, andalthough the withdrawal of the suit under that rule might, in the case of anadult person, have had the effect of barring any fresh suit for the same cause,that would not be so in the case of a suit brought on behalf of a minor,because the minor could have had no means of judging for himself, whether thewithdrawal was a prudent or proper course to take.

7. But it seems to me that there is no force in thatargument.

8. As long as we have reason to believe, that the suit islawfully brought by a party who has a right to bring it on behalf of the minor,it seems to me that any withdrawal of the suit by that party has precisely thesame effect as the withdrawal of a suit by a person of full age. It isdifficult to see why a suit properly brought on behalf of any other person, whocannot act for himself, should be subject (so far as the present question isconcerned) to other rules, than those which are applicable to suits brought byparties in their own names.

9. Mr. Bonnerjee, by way of illustrating his argument, asksus to suppose the case of a person, who had nothing to do with a minor, and noright to sue on his behalf, bringing an action of trespass in the minorsbehalf, and then, finding that the defendant had a good defence, withdrawingthe suit on no better authority than he brought it. But that would be a totallydifferent case from the present, simply because the person bringing the suitwould not be the proper person to bring it.

10. If Mr. Bonnerjee could have shown in this case thatthere had been any impropriety in the minors mother bringing the former suit,and that the minor, for that or some other reason, was not bound by her acts orthe acts of the person who managed the suit for her, that would have been adifferent thing. But here it is conceded that the mother was the proper personto bring the former suit, and no objection was taken on that score, either inthe former suit or in the Court below, or in this appeal.

11. We must, therefore, take it that the former suit wasproperly brought, and that being so, it seems to me that the withdrawal of thesuit had the same effect as the withdrawal of a suit by an adult person.

12. That disposes of the first contention.

13. But there was another point raised by the appellant,which, if there had been any facts to support it, would have been perfectlygood in point of law, namely, that the person who managed the suit on behalf ofthe plaintiff and his mother, withdrew it in fraud of the plaintiff, and incollusion with the defendant Nundamoni Dossee.

14. Of course, if there had been any ground for this contention,and if we were satisfied that it had been properly presented to the Courtbelow, and the Court had refused to frame an issue to try it, I should considerthat we ought to remand the case for the trial of such an issue.

15. But I am satisfied that this point, although it mighthave been mentioned, was not really pressed upon the attention of the Judge. Ithink if it had been refused, the Judge would have said something about it inhis judgment, and some mention would have been made of it in the grounds ofappeal. I am, therefore, not prepared to say that the learned Judge was wrongin not framing an issue upon that point.

16. At the same time, having regard to the plaintiffsposition, if I were even now satisfied that the plaintiff had any real groundfor contending that the withdrawal of the suit was brought about by fraud, Ishould certainly have been disposed to allow him, on proper terms, anopportunity of trying that issue in the Court below.

17. But I think, before we allow any party to raise an issueof fraud at this stage of the proceedings, we ought to be satisfied that thereis some real ground for the contention; and it was for this reason that werequired Mr. Phillips, when the Court rose yesterday, to produce an affidavitshowing in detail what grounds his client had to support the contention.

18. An affidavit has accordingly been produced, made by theplaintiff himself, and I am satisfied from that affidavit that he has nosufficient ground to justify us in allowing such an issue to be raised.

19. The affidavit only states that the mothers consent wasneither asked nor granted for the withdrawal of the former suit, and that theperson who was managing the suit received certain sums of money (not statingany amount) from the defendant Nundamoni Dassee, both before and after thewithdrawal. But it does not appear that those sums were paid for any improperpurpose.

20. The only suggestion of any fraud is made by theplaintiff himself in these words: "I allege that these payments were madeas a consideration to the manager for withdrawing the suit." But he givesus no reason for supposing that the allegation is well founded. It is only madein this general form by the plaintiff, who, at the time when the suit waswithdrawn, was a child of some five or six years old, and could, of course,have known nothing of the matter.

21. We should do very wrong to allow an issue of fraud to betried at this stage of the cause upon no better grounds than are disclosed inthe affidavit.

22. There is only one other point upon which I think itright to say a few words.

23. We had some doubt during the argument whether, assumingthat the withdrawal of the former suit to have been brought about by fraud, theplaintiff could bring the present suit without having taken some steps to setaside the former judgment; because this is not; the case of res judicata,properly so called but an absolute statutory prohibition imposed upon a partywho has withdrawn a former suit without leave to bring a fresh one.

24. But it seems to me, on consideration, that the ruleswhich apply to cases of res judicata must apply generally to a statutory bar ofthis kind.

25. It was said in the Duchess of Kingstons case, quotingthe opinion of Lord Coke, that "fraud vitiates the most solemn proceedingof Courts of Justice." and I think that, if in a case like the present itcould be shown that the withdrawal of the former suit was brought about byfraud and collusion between the party managing the suit and the defendants, theminor plaintiff might relieve himself from the consequences of the fraud in oneof three ways: 1st, by an application to the Court in the suit in which thewithdrawal took place; 2ndly, by a regular suit to set aside the judgmentfounded upon the withdrawal; or, 3rdly, by bringing a fresh suit for the samecause, and setting up the fraud as an answer to the statutory bar.

26. In this case, as there is no sufficient ground forraising the question of fraud, the appeal must bo dismissed, and the appellantmust pay the costs on scale No. 2.

Henry Stewart Cunningham, J.

27. I concur on both points with what has just fallen frommy lord.

28. The principal point urged in the appeal, namely, thatSection 97 of Act VIII of 1859 did not contemplate the case of a minor representedby a next friend, is one which is of great importance as regards the positionof minors who are brought into the case, and it is well that we have had theadvantage of two learned arguments upon it; but I confess that the result ofthat argument is that, however reluctant we may be to accept a state of thingswhich is calculated in some instances to work hardship to minors, I think thatwe must take it to have been the law, that where a minor is represented in themanner sanctioned by the law, and the person so representing him adopts aprocedure to which particular consequences attach by the Code, then thoseconsequences must affect the minor. For this reason I think that Section 97must be regarded as precluding the minor from re-opening the matter involved ina former suit from which the person acting for him has withdrawn. I also thinkthat there are no grounds on which we can allow the issue of fraud to be raisedat this stage of the proceedings.

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Eshan Chundra Safooivs. Nundamoni Dassee and Ors.(05.02.1884 - CALHC)