Order 32 Rule 2 CPC

This query is : Resolved 
 


Querist : Anonymous (Querist)
18 November 2010

Sir,
Our Opponents filed a suit for partition against our client in the year 1995 as if the plaintiff was major and mentioned her age as 19 years, whereas the Plaintiff herself filed her Transfer Certificate in the year 2008 at the time of Trial, which shows the date of birth was 02.06.1979. As per their document she was minor as on 1995. now the suit is posted for Arguments after completion of Trial. sir, now my question is

1. Whether the suit is maintainable without following the mandatory provisions of Order 32 Rule?

2. Shall I file a petition under Order 32 Rule 2 CPC to Takeoff the suit from the file even in the Argument stage or it has any time limit to file my application?

3. Whether the mistake committed by the Plaintiff is curable one at any Stage?

Please clarify me with a latest Judgments.

Thanks in advance.


adv. rajeev ( rajoo ) (Expert)
19 November 2010

Minor cannot file a suit independently, she must be represented by natural minor guardian. So the entire procedure followed by the plaintiff is wrong. You can argue the case.
It is not clear in your question whether suit was filed thru., minor guardian?
Have cross examined regarding the age of the plaintiff?

Advocate. Arunagiri (Expert)
19 November 2010

I agree with Mr.Rajoo.

s.subramanian (Expert)
19 November 2010

I disagree totally.This is a repeated query. However I would like to give a detailed reply since it involves an intricate question of law. The object of Order 32 Rule 2 CPC is to empower the courts even without any application from the defendant to take the plaint off the file is to enable the court to grant opportunity to minor to cure irregularities. As soon as the defect is cured the suit must continue. The court is bound to take note of the minority of the plaintiff,if the same is disclosed during trial.Therefore the course open to the court is to suspend all the proceedings in the suit until the defect is remedied. It is amply clear that the object of this rule is to enable the court to regularise the irregularity of filing of suit by minor without next friend. You can go through the judgment reported in AIR 2003 Gujarat 292 to get a wider knowledge about this aspect. I would like to draw your attention to the decisions reported in AIR 1964 Rajasthan 92 AIR 1973 Calcutta 83 and 2000 (4) Current Tamilnadu Cases 728 in this regard.

Considering the legal position set out in the abovesaid decisions only,I earlier replied stating that this defect can be cured at any stage and wanted you to concentrate on the factual merits of the case. If you insist of continuing with this objection it will be futile and like catching at straws. Good Luck.

R.Ramachandran (Expert)
19 November 2010

Dear Anonymous,
I completely agree with the views of Mr. S.Subramanian.
In order to succeed in an application under Order 32 Rule 2 CPC, the fact of the minority of the plaintiff should appear on the record. In the instant case, it appears that the fact of minority did not appear in the plaint when the same was filed in the year 1995. (It was revealed only in the year 2005.) By the time the fact is revealed, the minor has already attained majority. I hope the attached judgment is relevant in this regard.

If a suit is filed by a minor, it is open to the defendant to apply to have the plaint taken off the file under Order 32 Rule 2 CPC. But if he fails to avail himself of this, he cannot be heard afterwards to say that the proceedings were null and void because the plaintiff was a minor.


Querist : Anonymous (Querist)
19 November 2010

Thank you all. I am in the fake end, so, I am going to argue my case and i will advance the advices given here. once again thank you. especially to Mr.subramnaian sir.

DEFENSE ADVOCATE.-firmaction@g (Expert)
26 November 2010

The decisons referred above are in the situation when though plaintiff was minor and the same was not stated in the plaint.

But if the plaintiff was minor and stated to be major in the plaint at the time of filing of suit none of the citations referred above by the learned advocate will be applicable.

Khaleel Ahmed (Expert)
28 November 2010

Resolved.



You need to be the querist or approved LAWyersclub expert to take part in this query .


Click here to login now



Similar Resolved Queries :









×

  LAWyersclubindia Menu

web analytics