Report No. 69
16.143. To summarise the discussion-
(i) The proposed amendment is legally sound;
(ii) it is in conformity with justice;
(iii) from the point of view of law reform, it is desirable that an amendmer should be made; and
(iv) the amendment can be made appropriately in the Evidence Act.
16.144. Placing of the proposed amendment.As to persons under disability other than minors, the same provision should apply. Order 32, Rule 15, Civil Procedure Code, provides-
The provisions contained in rules 1 to 14 so for as they are applicable, shall extend to persons adjudged to be of unsound mind1 and to "persons who though not so adjudged are found by the Court inquiry, by reason of un-soundness of mind or mental infirmity, to be incapable of protecting their interests when suing or being sued."
1. See Amulya v. Kanak, AIR 1950 Cal 30.
In the light of the above discussion, we recommend he insertion of a new section as follows:
"44A. Party to a suit or other proceeding may show that any judgment, order or decree which is relevant under sections 40, 41. 42, 42A or 43A and which has been proved by the adverse party-
(a) was passed in proceedings wherein the party first mentioned or his predecessor in interest, being a minor or other person under disability, was represented by a next friend or guardian for the suit, and
(b) was the result of misconduct or gross negligence on the part of the next friend or guardian for the suit, leading to prejudice to the interests of the party first mentioned or his predecessor-in-interest, as the case may be".