Law: Civil Procedure Code (V of 1908)

Section: O. XXXII, rr. 10, 8(I)

  (a) Civil Procedure Code (V of 1908), O. XXXII, rr. 10 & 8(I)-Suit by minor-Retirement of next friend-Next friend of minor applying for withdrawal from prosecution of suit (not for withdrawal of suit) but trial Court permitting withdrawal of suit and ordering its dismissal-Proper course, held, was to allow next friend to withdraw from prosecution subject to his procuring a fit person to be put in his place and giving security for costs already incurred. (b) Civil Procedure Code (v of 1908), O. XXXII, r. 7 Suit by minor-Compromise resulting in withdrawal of suit Courts to be on guard and satisfy their conscience that withdrawal was for benefit of minor-Pre-emption suit-Next friend seeking withdrawal on ground that he was unable to deposit 1/5th pre emption money whereas in fact amount already deposited Held: Court, in circumstance, not justified in allowing withdrawal on bare statement of next friend. The trial Court did not satisfy his conscience that the with drawal was for the benefit of the minor. He did not record his finding that it was in fact for the benefit of the minor. The next friend practiced a fraud on the Court by saying that he was unable to deposit the `Zar-i-Khumas' whereas it had already been deposit ed in the Court and after the dismissal of the suit, he withdrew the amount of Rs. 500 `Zar-i-Khumas'. The contention of the plaintiff in the plaint was that the land had in fact been sold for Rs. 600 and that its market value was also Rs. 600 and in order to keep away pre-emptors, a fictitious price of Rs. 2,500 had been entered in the said deed. Plaintiff's evidence had yet to be produced. Possibly he could prove that the price had not been fixed in good faith and that the market value of the land was not more than Rs. 600. Rs. 500 had already been deposited on behalf of the plaintiff into the Court. In the circumstances it could not be said that the withdrawal was in the interest of the minor. The next friend wanted to withdraw from the suit. The trial Court should have allowed him to withdraw after calling upon him to furnish a fit person to act as next friend in his place and should also have called upon him to furnish…