The court should exercise discretion judiciously, especially in cases involving minor plaintiffs who are unable to protect their interests except through agents.

Hidayatullah, J—This is an application for revision of the order dated 25-4-1945 passed by Mr. S.N. Raina, First Subordinate Judge, Second Class, Nagpur, in Misc. Judicial case No. 86 of 1944. The applicant-plaintiff who is a minor had sued through next friend, mother, the present non-applicant, on a bond. The order sheet dated 28-8-1944 shows that the defendant had filed a written statement alleging that the amount was not due. The plaintiff wanted time for amendment of his plaint. Time was granted, and the case was fixed for 1-5-1944. On that date the suit was called three times at 12-48 P. M. The defendant was present but nobody appeared for the minor plaintiff. The suit was, therefore, dismissed. The plaintiff applied for restoration of the suit and an affidavit was sworn on the same day though it was filed on 3-6-1944.

2. In the application for restoration of the suit as well as the affidavit, the agent of the plaintiff alleged that he was delayed in reaching the Court because the train from Kamptee arrived late. Parties led evidence in the case. Plaintiff examined two witnesses. Ghasilal, the agent of the plaintiff, entered the box and said the train reached the Nagpur station at 12-30 p.m. or even after that. I rushed to the Court and found that the suit was dismissed.

3. The other witness, Mahadeo, said ''the train had come to Nagpur at about 12 that day.'' On Behalf of the non-applicant, S.K. Ghosh, Number Taker of the Railway, was examined and he brought the registers from the Nagpur Railway Station. In them the time of the arrival of the train was shown as 11-22 A. M. It is obvious that if the agent rushed to the Court, as he says he did, he could have reached before 12-48 P. M. when the suit was dismissed. On this evidence the learned Judge of the trial Court declined to restore the suit to the file. Hence this revision.

4. In the revision petition it is urged that the plaintiff is a minor and some concession should be shown to him. There is no distinction between a minor plaintiff and any other plain-tiff in so far as Order 9, Civil P.C. is concerned. It is true that some High Courts treat the case of an infant more liberally, the earlier Madras view being that the minority of a plaintiff is a sufficient cause if the next friend or guardian is, found to be negligent.

5. That view has now been modified by the Madras High Court itself in Venkata Surya Subbarayudu v. Bapanna Rao. The earlier view of the Madras High Court has not been accepted in the Oudh Chief Court and in certain other High Courts. I have been unable to find anything which would differentiate the case of a minor plaintiff from that of any other plaintiff.

6. Technically speaking, therefore, the learned Judge of the lower Court was right. The question is whether the discretion which he exercised against the minor plaintiff was a judicial discretion. He has not given a finding that there was any indirect purpose in the failure of the agent to be present at the time the case was called. The fact remains that the agent did travel that day from Kamptee to Nagpur and he was actually in Court the same day and he prepared an affidavit and swore it before a Judge. He may be wrong in the timings he has given, and he has probably not made a clean breast of the matter and shown where he lingered from 11-22-A. M. (the time of the arrival of the train) to 12-48 P. M. But the negligence is not so gross; as to disentitle the plainitiff who is a minor from having his case restored to the file. Though no difference is made in the Code in the case of a minor still in practical operation it is to be remembered that a minor is unable to protect his interests except through agents, and unless it can be shown that the agent was either grossly negligent or that there was a manoeuvring on his part to gain some advantage in the case, the case of the minor must be looked at somewhat indulgently. The law allows the Court to visit laches of this kind with other punishments.

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