Chattisgarh High Court
Shyamal Mallick vs Mamta Das on 17 March, 2026
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2026:CGHC:12819
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WP227 No. 304 of 2026
Shyamal Mallick S/o Late Santosh Mallick, Aged About 52 Years R/o Durpa
Road, Korba, Tahsil And District- Korba (C.G.)
... Petitioner(s)
versus
1 - Mamta Das D/o Late Shri C.R. Das Aged About 39 Years Caste Panika,
R/o Indira Market, Behind Sector- 6, Indira Market Balco Nagar , Tahsil And
District- Korba (C.G.)
2 - Mimansha Mallick D/o Shyamal Mallick, Aged About 10 Years (Now Aged
About 20 Years) Minor, R/o Indira Market, Behind Sector- 6, Indira Market
Balco Nagar , Tahsil And District- Korba (C.G.)
... Respondent(s)
For Petitioner(s) : Samsun Samuel Masih, Advocate
Hon'ble Shri Justice Ravindra Kumar Agrawal, J.
Order on Board 17/03/2026
1. The present writ petition has been filed by the defendant against the impugned order dated 01.01.2026 passed by the learned Family Court, Korba in Civil Suit No. 71-A/2017 by which the application filed by the 2 defendant under Order 32 Rule 12 & 13 read with Section 151 of CPC has been rejected.
2. Learned counsel for the petitioner would submit that the plaintiffs have filed the civil suit for declaration of their status that the plaintiff No.2 is the daughter born from the defendant. The said suit was filed on 11.04.2017 at the time when the plaintiff No.2 was aged about 10 years. The suit is pending since then and during the pendency of the suit, the plaintiff No.2 attains her majority. Thereafter, the next friend appeared on behalf of the minor plaintiff No.2 had made an application under Order 32 rule 8 of CPC for discharge of the next friend, as the plaintiff No.2 has already attained her age of majority. The said application of the plaintiff No.2 was allowed by the learned Trial Court vide its order dated 08.11.2024 and directed for amendment in the cause-title of the civil suit. Thereafter, the defendant has filed an application under order 32 rule 12 & 13 read with Section 151 of CPC on 09.06.2025 with the prayer that the plaintiff No.2 has already attains her majority and capable to prosecute her case independently, yet she has not made any application nor discharge her next friend and also for permission to prosecute the civil suit by her own and therefore, the suit of the plaintiffs is liable to be dismissed on this ground alone. He would further submit that since the plaintiff No.2 is not interested and not prosecuting her case and the issues involved with respect to the paternity of the plaintiff No.2 and she herself is not taking care of her case, the suit is liable to be dismissed, but the learned trial Court rejected the application by saying that under Order 32 Rule 12 & 13 of the CPC, even if the plaintiff No.2 has not filed any application, the suit 3 can not be dismissed. He would further submit that the plaintiff is prosecuting the suit since the year, 2017 and till date it has not come into a logical end and since the plaintiff No.2 is not taking care of her case, her suit is liable to be dismissed and the impugned order dated 01.01.2026 may be setaside.
3. I have heard learned counsel for the petitioner and perused the material annexed with the petition.
4. From perusal of the copy of the plaint, it transpires that the plaintiff No.2 is prosecuting the civil suit for declaration of her status as she is the daughter of the plaintiff No.1 and defendant, and the said civil suit was filed on 11.04.2017. At that time, the age of the plaintiff No.2 was shown as 10 years and the said civil suit was prosecuted through her mother who is the plaintiff No.1 in the suit, from perusal of the document, it transpires that it is not disputed that the plaintiff No.2 has attained its age of majority, however, the next friend appointed for the minor plaintiff No.2 had made an application under Order 32 Rule 8 of the CPC which was allowed vide order dated 08.11.2024 and directed for amendment in the cause-title of the plaint. Now, the defendant prayed for dismissal of the suit as the plaintiff No.2 did not take any care of the suit and has not sent her corrected status before the trial Court in the suit as she attains the age of her majority, for which the defendant has filed the application under Order 32 Rule 12 & 13 read with Section 151 of the CPC.
5. It is necessary here to notice the provisions of Order 32 Rule 12 & 13 of the CPC which provides as under :-
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12. Course to be followed by minor plaintiff or applicant on attaining majority --
(1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.
(2) Where he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name.
(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:
"A.B., late a minor by C.D., his next friend, but now having attained majority.".
(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.
(5) Any application under this rule may be made ex parte but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.
13. Where minor co-plaintiff attaining majority desires to repudiate suit --
(1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party, shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.
(2) Notice of the application shall be served on the next friend, on any co-plaintiff and on the defendant.
(3) The costs of all parties of such application, and of all or any proceedings theretofore had in the suit, shall be paid by such persons as the Court directs.
(4) Where the applicant is a necessary party to the suit, the Court may direct him to be made a defendant.
6. It is nowhere provided in the Order 32 Rule 12 & 13 of the CPC that after attaining the age of majority even if the minor plaintiff would not take any action for discharging the next friend and did not participated in the proceeding, the suit must be dismissed. In the case of Smt. Vidya Wati (Deceased) through Her L.Rs. vs Hans Raj (Deceased) through His L.Rs., AIR 1993 Delhi 187, the Delhi High Court has held 5 in para 52-54 that :
52. In Hazari V. Suresh, the facts were that two brothers, one of whom was minor, instituted a suit. The elder brother was the minor's guardian. The minor attained the age of majority during pendency of the suit but thereafter he neither elected to continue the suit nor to abandon it. It was held by the High Court that the interest of the two brothers being common, the suit could proceed even if the younger brother on attaining majority had not come forward to continue with the suit. However, in the present case, that situation has not arisen because appellant No. 5 has now elected to continue with the appeal and there is no limitation prescribed by the statute that how long after attaining the majority the election could be made by the party for continuing the proceedings. There is no limitation prescribed by the statute in this connection. The said provision also came up for consideration before Kerala High Court in Lakshmi v. Padmanabhan Nadar, 1967 Ker LT 490. It was held that under the law the minor must be informed of the pendency of the suit and in absence of such a notice the minor cannot be imputed with the knowledge of the pendency of the suit. So, before any adverse order is to be made against the minor who has attained majority, the court is liable to give notice which in the present case is not necessary because appellant No. 5 has now come forward to give her consent for continuing the appeal on her behalf as well.
53. The provisions of Order XXXII, Rule 12 of the Code of Civil Procedure also came up for consideration before a Division Bench of Gujarat High Court in Dharamshi Polahai v. Champaklal Vashram, . It was held that merely because the minor plaintiff having become major does not exercise his option under Order XXXII, Rule 12 of the Code of Civil Procedure one way or the other, during the pendency of the suit, it cannot be said that thereby any irregularity, defect or error of the type which affects the merits of the case or jurisdiction of the court gets projected in the proceedings. In the said case, the suit had been decreed and still it was held that the decree is not vitiated with the minor plaintiff after becoming major having not exercised the option given under Order XXXII, Rule 12 of the Code of Civil Procedure. In the present case, before even decision of these appeals the minor, who has become major, has exercised the option. So, there remains no legal bar in deciding the appeals on merits.
54. Counsel for the tenant has referred to R. Sami Naidu V. Katha Goundan, AIR 1940 Madras 522. This judgment is not applicable to the facts of the present case at all. Here the provisions of Order XXII of the Code of Civil Procedure were being examined. He has also referred to Dulal Chandra Majumdar v. Umesh Chandra Majumdar, AIR 1965 Assam 93, in which it was laid down that provisions of Order XXXII, Rule 12 are attracted only if in the course of trial the plaintiff who when the suit was filed was minor, attains majority and not to a case where the plaintiff is alleged to be major on the date of filing of the suit and has wrongly described himself as a minor. I do not understand how this judgment is of any help in support of the contention raised by the learned counsel for the tenant. He has also cited Gadadhar Panda v. Gangadhar Panda. In the said case, the suit was not maintainable at all when it was instituted in the name of the minor. So, it was held by the court that when the suit was not maintainable at all, there was no need to give any permission to the 6 minor who had attained majority to continue the suit. This judgment is also not applicable to the facts of the present case.
7. Since the suit was also prosecuted by the mother of the plaintiff No.2 who is the plaintiff No.1 and the plaint of the both the plaintiffs are one and the same with respect to the status of the plaintiff No.2 to be the daughter born from the defendant, it can not be said that even if the plaintiff No.2 is not participating in the proceeding of the suit, the suit is liable to be dismissed, particularly when it was prosecuted by the plaintiff No.1. Therefore, in view of the provisions of the Order 32 Rule 12 and 13 as well as the judgment passed by the Delhi High Court in case of Smt. Vidya Wati (Deceased) through Her L.Rs. vs Hans Raj (Deceased) through His L.Rs. (Supra), I do not find any sufficient ground to interfere with the impugned order dated 01.01.2026.
8. Accordingly, the present writ petition is dismissed at the motion stage itself.
Sd/-
(Ravindra Kumar Agrawal) Judge Sumit