Authored By : Trevelyan, T. Ameer Ali

Trevelyan and T. Ameer Ali, JJ.

1. This suit was brought on behalf of a person who wasalleged to be a minor. The defendant in his written statement contended thatthe plaintiff was not a minor but in reality had attained his full age. Thelearned Judge in the Court below tried only the issue as to whether thedefendants plea was true, viz., that the plaintiff was not a minor; and onfinding against the plaintiff on that issue dismissed the whole suit. We havenot gone into the question whether as a matter of fact the plaintiff was aminor, as having regard to the view which we take as to what course the learnedJudge ought to have adopted the learned pleader for the appellant has notcontested that finding. We think that the proper penalty for this mistake onthe part of the plaintiff, if it was a mistake, ought not to be the loss of thewhole suit but the payment of such costs as would properly indemnify the otherside. The proper course to be pursued, where the opposite party contends that aplaintiff who is alleged to be a minor is really an adult, is that thedefendant apply that the plaint be taken off the file or be amended. If it benot amended the next friends name may be treated as mere surplusage and thesuit be allowed to proceed.

2. We think it quite clear that the learned Judge havingfound that the plaintiff was not a minor ought to have given him an opportunityof electing whether he should proceed with the suit himself. No suchopportunity was given, and the suit was dismissed. If we were to uphold thisdecision the result would be, the suit being now barred by limitation, that theplaintiff, because of this error, whether intentional or not, would lose thewhole of his cause of action. We therefore set aside the decree of the Courtbelow, and we give the plaintiff leave to amend the plaint and to make suchalterations in it as are now necessary in consequence of its now being foundthat he is a major. We think, however, that it is clear that the defendant isentitled to have all the costs he has incurred up to this date. We accordinglyleave untouched the decree of the Court below so far as it orders payment ofcosts to him, and we also direct that the appellant pay to the respondent hiscosts in this Court; and as the case has not been heard on the merits butdisposed of on a preliminary issue we fix the pleaders fee at five goldmohurs. These sums, viz., the costs in the Court below and in this Court, mustbe paid within one month from the date on which the record shall arrive in thelower Court, and if so paid the suit will then be tried on its merits. If theybe not so paid this appeal will stand dismissed with costs. The record will besent down at once.

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Taqui Jan vs. Obaidulla (10.05.1894 - CALHC)