Subramania Pillai vs Chellammal and Others

Ratnam, J.—The order of the Court below is unsustainable. The application filed by the respondents herein was for withdrawal of the claim made in the suit on behalf of the fourth respondent-fourth plaintiff, who admittedly was a minor order. Under the Proviso to Rule 1 of Order 23,

Code of Civil Procedure, where a plaintiff is a minor, no part of the suit claim shall be abandoned without the leave of Court. Further, an application has got to be made for such abandonment, supported by an affidavit of the next friend and in cases where a minor or next friend is represented by a pleader, by a certificate of the pleader to the effect that the proposed abandonment, in his opinion, is for the benefit of the minor

order. Thereafter, the Court must satisfy itself, that the proceedings are likely to fail by reason of some formal defect or that there are other sufficient grounds for allowing the plaintiff to institute a fresh suit in respect of the subject-matter and then it may proceed to grant permission to withdraw the suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter or such part of the claim. It is also significant that if any part of the claim is abandoned without conforming to the procedure prescribed, the plaintiff is precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim, as the case may be. These aspects have not been taken into account at all by the Court below, while allowing the first respondent herein to withdraw the claim on behalf of the fourth respondent. The order of the Court below is therefore set aside and I.A. No. 2199 of 1985 is remitted to the District Munsif, Villupuram, for reconsideration and fresh disposal, in the light of the provisions of Order 23, Rule 1, Code of Civil Procedure, and the observations contained in this judgment. The civil revision petition is allowed.

There will be no order as to costs.