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Iqbal Ahmad Khan v. Master Mahmood Raza Khan Sherwani
Factual and Procedural Background
Rajes Kumar, J. heard counsel for the revisionist. The revisionist is a defendant who challenged the maintainability of a suit brought by a minor plaintiff through his grandfather. The revisionist moved the Trial Court contending the suit was not maintainable because it was not filed through the minor's "next friend" as required by Order XXXII, Rule 2 of the C.P.C. It is admitted that the minor's father is deceased and the mother is alive; nonetheless the suit was filed through the grandfather. The Court below rejected the challenge and the revision was filed against that order.
Legal Issues Presented
- Whether a suit by a minor filed through a grandfather is maintainable under Order XXXII, Rule 2 C.P.C., or whether "next friend" is confined to natural guardians.
Arguments of the Parties
Revisionist's Arguments
- The suit was not maintainable because it was not filed through the minor's "next friend" as required by Order XXXII, Rule 2 of the C.P.C.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Narain Singh v. Sapurna Kuer AIR 1968 Pat. 318 | That a "next friend" can be any person and is not confined to the guardians enumerated in section 4 of the Hindu Minority and Guardianship Act, 1956. | The court relied on this authority to conclude that the minor's suit filed through his grandfather is maintainable. |
Court's Reasoning and Analysis
The court accepted the factual premise that the father was deceased and the mother was alive but observed that Order XXXII, Rule 2 uses the term "next friend" which is not limited to natural guardians. Relying on the Patna High Court decision in Narain Singh v. Sapurna Kuer (AIR 1968 Pat. 318), the court noted the precedent's statement that a next friend need not be one of the guardians listed in section 4 of the Hindu Minority and Guardianship Act, 1956. Applying that principle, the court held that a grandfather may serve as next friend and therefore the suit filed through the grandfather could not be declared not maintainable on the ground urged by the revisionist. Finding no error in the order under challenge, the court dismissed the revision.
Holding and Implications
DISMISSED.
Direct effect: The revision against the Trial Court's order fails and is dismissed; the suit by the minor filed through his grandfather is held to be maintainable. The opinion does not purport to lay down a new broader precedent beyond applying the cited authority.
Rajes Kumar, J.:— Heard learned Counsel for the revisionist.
2. The revisionist is a defendant in the suit. The plaintiff is a minor and filed the suit through his grand father. An application has been moved by the revisionist before the Trial Court that the suit is not maintainable on the Page: 40ground that it has not been filed through the next friend and, therefore, it is not maintainable under Order XXXII, Rule 2 of the C.P.C
3. Admittedly, the father is not alive, though the mother is alive, but the suit has been filed through the grand father. Under Order XXXII, Rule 2 of the C.P.C, the word used is ‘next friend’. The ‘next friend’ is not confined to the natural guardian only. The Patna High Court in the case of Narain Singh v. Sapurna Kuer AIR 1968 Pat. 318, in paragraph 4, has observed that a next friend can be any person, not necessarily any of the guardians enumerated in section 4 of the Hindu Minority and Guardianship Act, 1956. Therefore, the suit filed by the minor through grand father cannot be said to be not maintainable.
4. In view of the above, I do not see any error in the order passed by the Court below. The revision fails and is dismissed.
Revision Dismissed.
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