JUDGMENT :

The defendant in O.S.No.172/2016 pending before the Munsiff Court, Punalur, has filed this Original Petition under Article 227 of the Constitution of India challenging a common order in I.A.Nos.1 and 2 of 2020 dated 29.07.2021 in the above Suit.

2. A pertinent question arose for consideration herein is: whether a Suit filed by a minor without a next friend shall be taken off the file or the same is a curable irregularity and thereby the minor can go on with the Suit after amending the Suit and appointing a next friend, on detecting the defect?

3. Heard Advocate B.Krishna Mani, the learned counsel for the petitioner as well as Advocate Joby Cyriac, the learned counsel appearing for the respondents in detail.

4. 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 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, is 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 third party affidavit to appoint next friend to the 2nd plaintiff.

5. 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 is only an irregularity which could be cured at any stage prior to the decree. Accordingly, both the applications were allowed.

6. While disputing the correctness of the above finding, Advocate B.Krishna Mani, the learned counsel for the petitioner, submitted that on a plain reading of Order 32 Rule 2 of the Code of Civil Procedure, it is emphatically clear that where a Suit is instituted without a next friend, plaint to be taken off the file. According to Advocate B.Krishna Mani, the filing of a Suit without a next friend is not a curable irregularity and the court has no other option other than to taken off the Suit from the file. Therefore, this Suit should be taken off from the file and cannot be proceeded. Advocate B.Krishna Mani placed a decision reported in [AIR 1976 Madras 235], Kamalammal v. A.M.Shanmugham & Ors., to contend that there is difference between a Suit being dismissed and a plaint being taken off the file. According to the learned counsel, going by the ratio of the above ruling, the suit filed by the 2nd plaintiff without appointing a next friend shall be taken off the file of the court. In the said decision, the Madras High Court observed as under:

“..... Admittedly, in this case, no application under Order XXXII, Rule 2 has been filed by the appellant for taking the plaint off the file. The above rule itself does not contemplate a suit instituted by such a minor plaintiff being dismissed on that ground. There is a difference between a suit being dismissed and a plaint being taken off the file, and all that Order XXXII, Rule 2(1) contemplates is a plaint being taken off the file on an application for the said purpose being made by the defendant. It is true the courts have made a distinction between two classes of suits instituted by a minor, one knowing that he was a minor and he was incompetent to institute a suit without the next friend and yet filing a suit with a view to deceive the court or with some ulterior purposes, and the other