This writ petition has arisen out of a suit for administration of certain property. It was filed by Mst.
Fahim-un-Nisa against the petitioners, Mian Ghularn Hasan and others. In that suit, the petitioners made an application under Order XXXII, rule :, of the Code of Civil Procedure, praying that Mst.
Fahim-un-Nisa was of unsound mind and since she had not sued through a next friend the plaint may be taken off the file. On this, the Civil Judge, who was seized of the suit, framed the following issue :- ".Whether the suit has been validly filed by Mst. Fahim-un-Nisa ? O. P. P.
Before the said issue could be decided, Mst. Fahim-un-Nisa breathed her last and thereupon respondents Nos. 3 to 9, Mst. Iqbal Begum and others, were impleaded as her legal representatives.
They shall, hereinafter be referred to as the respondents. The finding recorded by the learned Civil Judge on the above issue was to the following effect :- "Anyhow the evidence on the record is insufficient to prove that whether Mst. Fahim-in-Nisa was insane and of unsound mind or she was in a fit state of health and suit was competently filed by her. None of the parties have produced any documentary' evidence to this effect hence in view of this observation as the burden of proving the issue was on the plaintiffs hence I hold that issue is decided against the plaintiff due to lack of evidence on the file."
While examining the effect of the death of Mst. Fabiupkin-Nisa, it was held by the learned Civil Judge that since her legal representatives had been brought on the record, the suit could be proceeded with. He, therefore, declined to take off the plaint. His order was challenged by the petitioners by filing a Civil revision but it was dismissed by an Additional District Judge. They have, therefore, invoked the constitutional jurisdiction of this Court to assail the orders of the two Courts below.
2. It was contended by learned counsel for the petitioners that by deciding the issue, reproduced above, against the plaintiff, it was held by the learned Civil Judge that the suit had not been properly instituted and, therefore, he had no jurisdiction to proceed with the suit. According to him, it was incumbent on the learned Civil Judge to take off the plaint. As regards the stepping in of the legal representatives of the plaintiff, the submission made by him was that the said development did not remove the inherent defect in the suit.
3. The sum and substance of the arguments raised by learned counsel for the petitioners was that if a suit is required to be instituted through a next friend but is not so instituted, the only course open to the Court before which the suit is filed is to direct that the plaint be taken off: In other words, according to him, it is not open to the Court to allow the plaintiff to bring forward a next- friend to prosecute the suit on his behalf. He` however, did not cite any authority in support of the stand taken by him. As against this, there are numerous authorities on the point that if the Court finds that the suit which should have been filed through a next friend has[ not been brought accordingly, it can allow reasonable time to the plaint is to sue through a next friend and in case he fails to make amends with the time allowed to him the Court can direct that the plaint be taken off.
Some of the authorities have been reported as Ali Ahmad v. Said Mian an another (1) and (Rupooth) Ririchand alias Ramanunni Kurup v. Vayisravanth Manakkol Raman and another (2). I am, therefore, unable to agree with the learned counsel that having decided the aforementioned issue against the deceased plaintiff, it was obligatory for the learned Civil Judge to throw away the plaint.
4. If the issue had been decided , against the plaintiff during her life J time the learned trial Court ought to have, in view of the above authorities, allowed her to sue through a next friend ; and if she had done so, her legal representatives could have been brought on the record after her death.
Since she had died and her legal representatives had also been impleaded in her place before the issue had been decided as aforesaid the result which was required to be achieved in the event of her expiring after their having come into the picture of her next friend has already been achieved. It is not the case of the petitioners that the respondents, who are prosecuting the suit as legal representatives of the plaintiff, namely, Mst. Fahim-un-Nisa, are not her legal representatives. With her death and the stepping in of the legal representatives, the remediable defect in her suit has since been removed. In this view of the matter, the orders of the two tribunals below are unexceptionable.
5. Resultantly, this writ petition fails. It is dismissed in limine.
(1) AIR 1924 Lah. 188 (2) AIR 1923 Mad. 553