Madras High Court
Rajagopala Pandarithar, Minor ... vs Muthu Kumara Chettiar on 18 November, 1912
Equivalent citations: 17IND. CAS.762
JUDGMENT Sadasiva Aiyar, J.
1. The District Munsif dismissed the suit for default under Order IX, Rule 12, because the minor plaintiff's next friend did not appear in person when ordered to do so.
2. I do not agree with the petitioner's Vakil that the Court has no power to order a party to appear in person except when empowered by specific sections found in the Civil Procedure Code. I think the Court must have such power, whenever it considers that the interests of justice require any party to appear in person at any stage of the case.
3. But the Court has no power under Order IX, Rule 12, to dismiss a minor's suit for default because of the disobedience of his next friend. The next friend is not a party to the suit see Collector of Trichinopoly v. Sivaramakrishna Sastrigal 23 M. 73 at p. 81 though for purposes of answering interrogatories or for saddling him with costs, he might be treated as a party. He should not be treated as a party in order to visit his disobedience to the Court's orders upon the minor plaintiff and so as to prevent the minor plaintiff from appearing farther in the suit through the Vakil already appointed for him or through some other next friend who might be appointed after removing the disobedient next friend.
4. I, therefore, set aside the Munsif's order dismissing the suit for default and direct the suit to be restored to file and disposed of according to law. Costs to be costs in the cause.