JUDGMENT

Dalal, J. - The subordinate Courts have not proceeded correctly in this matter. The plaintiff Raja Lohar minor under the guardianship of Jawahir Lohar instituted the present suit. The suit proceeded nearly up to the date of the judgment. A day before the judgment the defendants pointed out that Jawahir Lohar was not a proper guardian as another certificated guardian had been appointed to Raja Lohar. It was the duty at that time by the trial Court to take proceedings under Rule 2 of Order XXXII. If Jawahir Lohar could not take action as guardian the suit must be taken to have been filed by the minor without a guardian. Rule 2 of Order XXXII enacts:

Where a suit is instituted by, or on behalf of, a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the Pleader or other person by whom it was presented.

2. No such action was taken, and the trial Court is in its judgment stated that the suit failed by reason of the want of a proper next friend of the plaintiff. The Court, however, proceeded to decide the other issue, and dismissed the suit.

3. The lower Appellate Court also first held that the suit was untenable for