Beeni V. Balasuriya

Present: Lascelles C.J. and Pereira J.

BEENI v. BALASURIYA.

236-D. C. Trincomalee, 475.

Minor-Appointment of next friend for claim inquiry-Claim by minor dismissed-Action by next friend under x. 247, Civil Procedure Code, without getting himself re-appointed.

A duly appointed next friend preferred a claim on behalf of a minor. The claim was dismissed. He thereupon filed an action under section 247 without getting himself re-appointed next friend for the purpose of this action. The defendant, without moving to have the plaint taken off the file under section 478 on the ground that the next friend was not duly appointed, took the objection in his answer.

Held, per Lascelles C.J., that the appointment of the next friend for the purposes of the claim inquiry was sufficient to enable the next friend to bring the action under section 247 of the Civil Procedure Code, when the claim was dismissed.

Held, per Pereira J., that the defendant should have moved to have the plaint taken off the file under section 478, and that it was not open to him to raise the objection as to the status of the next friend in the answer.

Obiter.-The appointment of next friend for the claim inquiry did not hold good for the purpose of the action under section 247.

THE facts are set out in the judgment.

Wadsworth, for the plaintiff, appellant.-A person appointed next friend may bring an action on behalf of a minor without a certificate of curatorship. See Uduma Lebbe et al. v. Seyadu Ali et al.,2 Gunasekera v. Abubakkar. 3

1 (1899) 1 Tam. 18.                                                                 2 (1895) 1 N. L. R. 1.

3 (1902) 6 N. L. R. 148.

An action under section 247 of the Civil Procedure Code is in the nature of an appeal from the order made in the claim inquiry. An unsuccessful next friend, who claimed on behalf of a minor, need not get himself appointed next friend a second time for bringing an action under section 247; this action is not a separate action. The order made in the claim proceeding is subject to the order in the action under section 247.

If the action under section 247 is treated as a separate action, the fourteen days allowed for bringing that action may not be sufficient to get a next friend appointed.

The minor would be bound by the order in the claim inquiry unless he brought an action within fourteen days. To insist on the minor getting a new next friend appointed would in very many cases result in denying to him the right of an action under section 247. Counsel referred to Omeru Lebbe v. Dias et al.,1 Weerakoon v. Nikulas,2 Fernando v. Fernando.3

It is not open to the defendant to raise this objection in the answer. He should have moved by way of summary procedure that the plaint be taken off the file. Mohamadu Umma v. Mohideen.4

The order of the Court in accepting the plaint without any demur on the part of the defendant under section 478 is tantamount to appointing plaintiff as next friend. The Court can even now appoint the plaintiff as next friend. See Appuhamy v. Dionis.5

Sampayo, K.C., for the defendant, respondent.-A claim is quite a different proceeding from an action under section 247. For the purposes of the action under section 247 there should have been a separate appointment of next friend. Counsel referred to Deen v. Pulle,6 Mohammado Umma v. Cader Mohideen.7

It is not open to the Court to make an appointment now.

Wadsworth, in reply.

Cur. adv. vult.

November 5, 1912. Lascelles C.J.-

In this case Pakir Mohideen was appointed next friend of the appellant, who was a minor absent in India, for the purpose of claiming certain property which the defendant in this action had seized as the property of his judgment-debtor. The claim was dismissed with costs. Pakir Mohideen then proceeded to institute the present action under section 247. When the plaint was filed the defendant-respondent did not apply, under section 478, to have the plaint taken

Click Here to Read the rest of this document