Upon attaining majority, a minor plaintiff is required to make an election to proceed with the suit or abandon it, as per Order 32 Rule 12 of the CPC.

( 1 ) CHALLENGE is to the order dated 31-10-1994 passed by the learned 1st Additional District Judge, Bilaspur rejecting the application preferred under Order 32 Rule 12 of the Code of Civil Procedure (in short 'the Code') by the defendant No. 1.

( 2 ) THE facts as have been uncurtained are that the non-applicant No. 1 as plaintiff filed a civil suit No. 9-A/86 in the Court of First Additional District Judge, Bilaspur being represented by his maternal uncle, Harishankar Joshi. The suit was for declaration of right, title interest and permanent injunction. After the plaintiff became major the defendant No. 1 filed an application under Order 32 Rule 12 of 'the Code' requiring the plaintiff to make an election either to proceed with the suit or abandon the same. The said application was resisted by the guardian and the learned trial Judge rejected the application on the ground that it was open to the plaintiff to make a choice.

( 3 ) MR. Sanjay Agrawal, learned counsel for the petitioner has drawn the attention of this Court to Order 32 Rule 12 of the CPC to highlight that when a minor plaintiff becomes major he has to make an election whether to contest the suit or abandon the same and if he chooses to continue with the suit he has to apply for discharging of his next friend. Mr. Agrawal has placed reliance on the decisions rendered in the cases of Bhanu Pratap Singh v. Ram Sahai, 1981, MPWN 246 (SN), Ishar Singh v. Bakshish Singh AIR 1929 Lahore 555 (2) and Vidya Wati v. Hans Raj AIR 1993 Delhi 187. Resisting the aforesaid submission Mr. Hemant Namdeo, learned counsel for the non-applicants has supported the order passed by the learned trial Judge.

( 4 ) TO appreciate the rival submissions raised at the Bar it is apposite to refer to Order 32 Rule 12 of the Code of Civil Procedure. It reads as under :"order 32 Rule 12- (1) A minor plaintiff or a minor not a party to suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application. (2) Whether he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name. (3) The title of the suit or application shall, in such a case be corrected so as to read henceforth thus :- "a. B. , late a minor, by C. D. , his next friend, but now having attained majority. " (4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party which may have been paid by his next friend. (5) Any application under this rule may be ex parte : but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend. "on a bare perusal of the aforesaid provision it becomes quite vivid that after the minor plaintiff becomes a major he has to make an election to contest the suit or abandon the same. If he claims to proceed with the suit he has to pray for discharging of the next friend and to seek leave to proceed on his own.

( 5 ) IN the case of Ishar Singh (supra) it has been held as under :"where during the pendency of an appeal on behalf of a minor it was discovered that the minor had attained majority after the institution of the appeal and the Court instead of calling upon the quondam minor (who was present in Court) to elect whether he intended to proceed with the appeal or not dismissed it 'for want of prosecution'. " (Quoted from the placitum)In the case of Bhanu Pratap Singh (1981 MPWN 246 (SN) (supra) the learned Chief Justice spoke thus :-"rule 12 provides that a minor plaintiff shall, on attaining majority, elect whether he will proceed with the suit and where he elects to proceed with the suit, he shall apply for an order discharging the next friend and for leave to proceed in his own name. The appli