Slebert V. New Asia Trading Co., Ltd.

1962 Present: H. N. G. Fernando, J., and Sri Skanda Rajah, J.

SIEBERT, Appellant, and NEW ASIA TRADING CO., LTD. and
another, Respondents

S.C. 49 (Inty.) of 1961-D. C. Colombo, 49992/M

Action against minor-Attainment of majority soon after plaint is filed-Resulting position-Action not void ab initio-Meaning of " Order "- Civil Procedure Code, as. 5, 46, 48, 476, 479, 480, 493.

     Where, in an action instituted against a minor, the minor attains majority soon after the plaint is filed, it is not open to him to have himself discharged from the proceedings in terms of section 480 of the Civil Procedure Code. In such a case, the acceptance of the plaint is not an " order " within the meaning of section 480.

     An action against a minor simpliciter  is not void ab initio, and can be duly continued subject only to compliance with the requirement of section 479 of the Civil Procedure Code that a guardian should be appointed when the fact of minority is established.

APPEAL from an order of the District Court, Colombo.

                       S. Sharvananda, for Plaintiff-Appellant.
 
                     H. W. Jayewardene, Q.C., with C. Ranganathan, for, the 2nd Defendant-Respondent.

Cur. adv. vult.

January 16, 1963. H. N. G. FERNANDO, J.-

      This was an action by the Plaintiff for damages for injury alleged to have been suffered in consequence of the negligent driving of a motor car by the 2nd Defendant on 18th May 1958. The plaint was filed on 17th May 1960. Summers was ordered and was served on the 2nd Defendant whose proxy was filed thereafter. But instead of filing answer as ordered by the Judge, the proctor moved the Court as follows on 30th September 1960 :-

   " 2. The 2nd Defendant was a minor at the time of the institution of the above action. The 2nd Defendant attained majority on the 17th dry of July 1960 . . . .

     3. The Plaintiff did not take any steps to appoint a guardian ad litem over the 2nd Defendant for the purpose of this action. Wherefore the 2nd Defendant preys that the Court be pleased to discharge him from the above action and enter an interlocutory decree for this purpose in terms of Section 480 of the Civil Procedure Code."

        This appeal is from the order made by the learned District Judge in terms of that motion by which order he purported to " discharge the 2nd Defendant from these proceedings ". For the appellant, it is not disputed that the 2nd Defendant was a minor at the time when the plaint was filed, but it is argued that since the 2nd Defendant did attain majority on 17th July 1960, the court should not have discharged him from the proceedings, but should only have ordered summons to be served on him afresh.

       In support of the order of discharge, Mr. Jayewardene had to contend that in accepting the plaint the Judge had made an " order ", and that he was bound to discharge that o-der under Section 480 of the Code, and thus to discharge the 2nd Defendant from the entire proceedings. The basis of this contention was that every plaint filed against a minor, and' every acceptance of such a plaint, is a nullity, unless the Plaintiff has previously taken steps to have a guardian appointed for the minor and names the guardian, in that capacity, as Defendant in the plaint. In other words Counsel sought to import into the Code, for the case of an action against a minor, provision corresponding to that which is expressly enacted in Section 476, namely that an action by a minor shall be instituted by his next friend.

     But Section 479 of the Code clearly contemplates that the Court does have jurisdiction to deal with an action in which a minor, simpliciter, is named as Defendant, for it provides that if the Court is satisfied of the fact of the minority of the Defendant to an action, the Court shall appoint a guardian for the minor. The procedure for such an appointment is prescribed in

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