Law: Civil Procedure Code (V of 1908)

Section: O.XXIII,r.1

(a) Civil Procedure Code (V of 1908), O. XXIII, r. 1---­Suits by minors compromised by next-friends and withdrawn­-Court recording order dismissing suits-Minors subsequently suing on same subject-matter alleging fraud and negligence on Part of next friends in previous suits-Minors, held, have substan­tive right to sue-Prayer f or setting aside previous decrees not necessary in subsequent suit. In the two previous eases instituted on behalf of the plaintiffs by their next friends the latter made statements that they had compromised the cases and that they were withdrawing from the suits, which should consequently be dismissed. Held, the prayer for dismissal was redundant and equally redundant was the order of the Court dismissing the suits. The plaintiff or the plaintiffs- in each case withdrew from the suit and it was consequently a withdrawal under Order 23 Rule 1, Civil Procedure Code. The effect of such withdrawal, when permission is not given to bring a fresh suit, is that the plaintiff is precluded from instituting any fresh suit in respect of the same subject-matter. Where, however, a compromise is entered into by the next friend of a minor in circumstances suggesting fraud or gross negligence, it is well settled that the minor has a substantive right to challenge it. The two suits having been withdrawn, there was merely an order dismissing them but there was no decree against the minors which it should have become necessary for them to seek to set aside. It was, therefore, quite in order for the plaintiffs to include no prayer in their suit for the setting aside of any previous decree. But even if a previous decree had existed against the minors, the fact that it had resulted from-the withdrawal of the suit under Order 23 Rule 1, Civil Procedure Code, without permission to bring a fresh suit having been asked for or granted, would not have made the minors' position worse than, it would have been if the decree had been obtained against them in the ordinary course, assuming that it had proceeded from fraud or gross negligence. A. I. R. 1924 Lah. 427 and A. I: R. 1936 All. 811 ref. A. I. R. 1946 Lah. 233 ref. A. I. R. 1946 Lah. 233, 10 Cal. 357, 29 Cal.…

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