Wickremaratna V. Josephine Silva

1959 Present : Basnayake, C J., and Pulle, J.

WICKREMARATNA, Appellant, and JOSEPHINE SILVA,
Respondent

S. C. 108158-D. G. Avissawella, 8622

Minors-Action instituted by minor without next friend-Not void ab initio-Scope of defendant's right to have action dismissed-Civil Procedure Code, ss. 476, 478.

Where a defendant makes an application under section 478 of the Civil Procedure Code to have the plaint taken off the file on the ground that the action was instituted by a minor without a next friend, the Court is entitled to refuse the application if it is shown that the plaintiff came of age after the date of the institution of the action and prior to the date of the defendant's application.

APPEAL from an order of the District Court, Avissawella.

H. W. Jayewardene, Q.C., with S. B. Lekamge and N. R. M. Daluwatte, for defendant-appellant.

No appearance for plaintiff-respondent.

Cur. ad. vult.

December 10, 1959. BASNAYAKE, C.J.-

This is an appeal from the order of the District Judge refusing to allow an application by the defendant under section 478 of the Civil Procedure Code to have the plaint taken off the file.

The plaintiff seeks to recover Rs. 5,000 as damages from the defendant for seduction. On 6th May 1957 when the action was instituted she was a minor, but it was not instituted in her name by a next friend as required by section 476 of the Civil Procedure Code. Summons could not be personally served on the defendant though it was re-issued several times. On 30th September 1957 the plaintiff's Proctor moved the Court under section 60 of the Civil Procedure Code to prescribe the following mode of service of summons " by affixing the same to the front door of the last known place of abode of the defendant at Kahahena, Waga ". This application was allowed and on 8th November 1957 the defendant's Proctor filed his proxy and moved for a date to file answer. The Court fixed 15th November 1957 for the purpose. The answer was not filed on that day, nor was it filed on 2nd December 1957 or 19th December 1957, the further dates that were given. It was eventually filed on 28th January 1958. On 11th February 1958 the case was called for fixing the date of trial and it was fixed for 29th May. On 8th May the plaintiff's Proctor filed the list of witnesses and documents and moved for summons. On 20th May the defendant's Proctor with notice to the Proctor for plaintiff moved that the trial fixed for 29th May be postponed as the defendant could not get ready " due to certain difficulties ". On 29th May the trial was refixed for 3rd October. On 18th September the plaintiff's Proctor obtained summons on the witnesses. On 30th September 1958 the defendant made an application by way of summary procedure under section 478 of the Civil Procedure Code that the case be taken off the trial roll. The plaintiff had come of age on 20th January 1958. The District Judge after hearing counsel dismissed the defendant's application.

I see no reason to interfere with the order made by him. An application under section 478 must be made while the plaintiff is a minor. The present application does not fall within the ambit of that section as it has been made long after the plaintiff ceased to be a minor. The power given to the Court to order that the case be taken off the file is designed to enable a minor to regularise his or her plaint by having a next friend appointed. In the case of a minor who has come of age at the time of the Application, taking the case off the file would serve no purpose as he is competent to proceed without a next friend. The Indian Courts appear to have taken the same view of the corresponding section of the Indian Civil Procedure Code as that expressed by me here. It is sufficient to mention the case of Beni Ram Bhutt v. Ram Lal Dhukri [I. L. R. (1886) 13 Calcatta 190 at 193. ], and Rattonbai v. Chabildas Lalloobhoy and others [2I.

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