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The Kerala High Court dismisses Article 227 Petition holding that Suit filed by a minor without a next friend is a curable irregularity which can be cured by filing a subsequent application.




The High Court of Kerala has dismissed a petition under Article 227 of the Constitution of India, which petition was filed challenging the common order passed by the Munsif Court, Punalur. Coming to the facts of this case : O.S.No.172 of 2016 was filed by one Bhanumathi @ Lakshmi as 1st plaintiff and Rahul.K.R, a minor, aged 6 years (the adopted son of the 1st plaintiff) as 2nd plaintiff against the defendant/petitioner herein seeking the relief of permanent prohibitory injunction from destroying the boundaries of plaint schedule property, annexing the same to his plot, from ousting the plaintiff from the plaint schedule properties, from cutting and removing trees therefrom and from committing any waste therein. It is relevant to note that though Rahul.K.R, the 2nd plaintiff, was a minor (aged 6 years during 2016), no next friend was appointed to proceed with the case. Thereafter, I.A.No.1/2020 was filed to amend the plaint by appointing a next friend and I.A.No.2/2020 was filed to receive a third party affidavit to appoint next friend to the 2nd plaintiff.

The learned Munsiff considered the above petitions on merits. The learned Munsiff observed that as per Rule 212 of Civil Rules of Practice, omission to file an affidavit is a curable defect and therefore a third party affidavit is liable to be accepted. Similarly, relying on a decision reported in [1955 KLT 75], Ouseph Joseph v. Thoma Eathamma, the learned Munsiff found that a Suit without a guardian for a minor was only an irregularity which could be cured at any stage prior to the decree. Accordingly, both the applications were allowed. Aggrieved by the order passed by the Court of the Munsiff the defendant to the suit, the Petitioner herein filed the present petition under Article 227 of the Constitution of India. 
The Court held thus:

Therefore, the legal question mooted by the learned counsel for the petitioner to the effect that if a Suit has been filed by a minor without a next friend, it is not a curable irregularity and the same shall be taken off the file, is not the law. Therefore, it is held that a Suit filed by a minor without a next friend need not be taken off from the file since the same is a curable irregularity and by filing a subsequent application, the defect can be cured. To put it differently, a minor who filed a Suit without appointing a next friend as stipulated under Order 32 Rule 2 of C.P.C, can cure the defect by appointing a next friend seeking such prayer by filing a separate petition for the same and the Suit can proceed.



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