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Report No. 27

Order XXIII, rule 1 (3A)

It is considered, that where a suit is withdrawn by the next friend acting on behalf of a minor, etc., leave of the court should be obtained. Necessary amendment is proposed.

Order XXIII, rule 1 (3B)

It is considered, that where a suit in which the plaintiff is a minor, etc., is withdrawn, the application should be accompanied by an affidavit of the next friend as well as a certificate of the counsel to the effect that the withdrawal is for the minor's benefit. The Madras Amendment, Order XXXII, rule 7(1A) provides that where an application has been made for leave to enter into an agreement or compromise, or withdrawal of a suit in pursuance of a compromise, or for "taking any other action" on behalf of a minor, etc., certificate of the counsel to the effect that the agreement, etc. is for the minor's benefit should be filed. The proposed amendment has suggested itself on a study of the Madras Amendment, though it differs from it by requiring an affidavit of the next friend also.

Order XXIII, rule 3

It is considered that an agreement or compromise under Order XXIII, rule 3 should be in writing signed by the parties. A similar provision has been made by the Orissa Amendment to this rule, which appears to be worth adopting. It may be stated that oral agreements or compromises are difficult to prove1, and are often set up to delay the progress of the suit.

1. Cf discussion in Athappa v. Peria Sami, AIR 1956 Mad 344 (347).

Order XXIII, rule 3 and "lawful"

The words "lawful agreement or compromise" in Order XXIII, rule 3 have created some controversy as to whether they exclude agreements which are voidable under section 19A of the Contract Act. One view is, that such agreements are not excluded. That view is based on the reasoning that the expression "lawful" excludes only two classes of agreements-those which are "unlawful" and those which are Void1-2-3-4-5-6-7-8

But a contrary view has been taken in certain other cases9-10-11.

The matter requires to be clarified, and the wider view of these words i.e. the latter view, should, it is considered, be incorporated. Necessary amendment is proposed.

1. Qadri Jahan Begaim v. Fazal Ahmad, AIR 1928 All 494 (Sulaiman and Kendall JJ.).

2. Hussain Yar Beg v. Radha Kishan, ILR 57 All 426: AIR 1955 All 137.

3. Ram Asray v. Rameshwar, AIR 1961 All 529.

4. Western Electric Co. Ltd. v. Kailash Chand, AIR 1940 Born 60 (Kania J.).

5. Harbans Singh v. Bawa Singh, AIR 1952 Cal 72 (Sinha J.).

6. Suraparaju v. Venkataratnam, AIR 1936 Mad 347 (Wadsworth J.).

7. Kuppuswami Reddi v. Pavanammal, AIR 1950 Mad 728 (Rajamartnar C.J. and Somasundaram J.).

8. Krishnan v. Rayrappan, AIR 1959 Ker 130 (reviews case-law).

9. Nand Lal v. Ram Sarup, AIR 1927 Lah 546(2) (Addison and Agha Haider JJ.).

10. Misrilal v. Sobha Chand, AIR 1956 Born 569 (572) para. 5 (Shah J.).

11. Pannalal v. Kirhanlal, AIR 1952 Nag 84.

Order XXIII, rule 3 and the words "so far as relates to"

There is an apparent conflict of decisions as to the interpretation of the words "so far as relates to the suit" used in Order XXIII, rule 3. The question that arises in practice is, whether a decree which records the terms of a compromise in respect of matters beyond the scope of the suit is executable, or whether the terms of the decree relating to matters outside the suit can be enforced (as a contract) only by a separate suit1. It is not, however, possible to resolve the conflict of decisions by verbal changes. since the application of the rule may vary according to the facts of each case. As a general amendment is not thus possible, no change is considered necessary.

1. See case-law discussed in Ram Jiwan v. Davindra Nath, AIR 1960 MP 280 (282), paras. 17 and 18.

Code of Civil Procedure, 1908 Back

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