PUNJAB AND HARYANA HIGH COURT

                                                    Suraj Bhan

                                                         Vs

                                                  Balwan Singh

                                       Civil Revision No. 749 of 1971

                                                  (C.G. Suri, J.)

                                                    04.11.1971

                                                  JUDGMENT

C.G. Suri, J.

1. This revision petition has been filed by the vendees in a pre-emption case against the interim
order of the trial Court directing the suit should be proceeded with, even though the plaintiff-pre-
emptor, who was the vendor's son, was a major on the date of institution and the suit had been
filed on his behalf by the mother as the next friend. The plaintiff had come forward to continue
the suit as a major under Order 32, Rule 12 of the Civil Procedure Code long after the expiry of
the period of limitation prescribed for the filing of such suits for the enforcement of a personal
right. It may further be observed that the ordinary period of limitation provided for filing such
pre-emption suits is not enlarged by the minority or other legal disability of the pre-emptor.

2. The sale which is sought to be pre-empted in this case was effected by the plaintiff's father by
a registered deed on 17th February, 1968 and the pre-emption suit was filed on 14th February,
1969 that is to say, three or four days before the period of limitation was due to run out. The
petitioner-vendees took up the objection in their written statement dated 18th October, 1969 that
the plaintiff was a major on the date of institution and that a collusive suit had been filed on his
behalf by the parents and that the father was bearing all the expenses. The mother filed a
replication on 13th November, 1969 persisting that her son was a minor but the plaintiff made an
application the same day seeking permission that he may be allowed to continue the suit on his
own. Neither the mother nor the son had given the date of birth in these proceedings filed on 13th
November, 1969. Plaintiff's application dated 13th November, 1969 was allowed by the trial
Court on 4th May, 1970 and the plaint was ordered to be amended. An appeal was filed by the
vendees before the Additional District Judge against this interim order but as it was felt that no
appeal was competent, it was withdrawn on 15th October, 1970. Some of the reasons for
withdrawing this appeal were that while allowing the amendment of the plaint, the trial Court had
observed that the effect of the plaintiff being a major on the date of the institution of the suit
could not be left open for decision and that preliminary issues with regard to that objection of the
vendees had actually been framed. The trial Court's order deciding these preliminary issues in
favour of the plaintiff-pre-emptor has given rise to this revision petition by the vendees.
3. While passing the impugned order, the learned trial Court has relied on a Privy Council ruling
in Mohini Mohun Dass and Others v. Bungsi Buddan Saha Dass and Others1, and a Single
Bench decision of the Lahore High Court in Amritsaria v. Gamun2, The Privy Council ruling is
not at all applicable to the facts of the present case. The suits in that case had been filed by one of
the three joint creditors. The other creditors had been named as co-plaintiffs though they had not
signed and verified the plaints. It was held that all the joint creditors became plaintiffs when the
plaints were filed in Court and that the question of adding parties did not arise and that the suits
when instituted were not defective for want of any necessary parties. The Single Bench decision
in Amritsaria's case (supra) was cited in a later ruling of the same High Court in Ghasi v. Manga
and Another3, but was not followed. The one column judgment in Amritsaria's case does not
state the facts and it may appear to have been taken for granted that the mistake made by the
plaintiff or his next friend was bona fide. In the later ruling, it had been observed that in
Amritsaria's case the question of amendment of the plaint was obiter and that the fact of the
amendment had been taken for granted as past history and that the question that had arisen was
whether it was necessary for the plaintiff to sign the plaint as a major after mistake had been
discovered. The ruling in Ghasi's case (supra) may appear to be more in point. It was given in a
pre-emption suit filed under similar circumstances. The trial Court had allowed the plaint to be
amended and the order allowing amendment had been maintained on appeal by the learned
District Judge. The High Court had set aside that order and had directed that the pre-emption suit
should be dismissed. It was observed, amongst other things, that when a person was in fact a
major and a suit had been instituted on his behalf as a minor, the plaint could be allowed to be
amended only when the mistake was shown to be bona fide. Bonafide conduct was held to be a
question of fact but the finding on the point of the two Courts below had been set aside in second
appeal because it was not based on any evidence. Worthless evidence was taken to be no
evidence at all as it established nothing. It was also observed that the burden of proving good
faith or bona fides was on the party who wanted the Court to exercise its discretion in his favour.
The same view with regard to the burden of proving bona fides or good faith was taken in Gaya
Din and Others v. Emperor4,. There is then a long string of rulings to show that amendment of
the plaint on these facts could be allowed only if the next friend of the plaintiff had made the
mistake in a bona fide manner. In this connection, reference could also be made to two other
Division Bench rulings of the Madras and Calcutta High Courts in Shanmuga Chetty v. C.K.
Narayana Ayyar5, and Narayana Chandra Das v. Dulal Chandra Dutta6, respectively.

4. Exactly the same question had arisen before me in Bhim Sain and Others v. Harish Chander7,
On the facts of that particular case, I had found that the plaintiff's mother had filed a pre-emption
suit on behalf of her son, who had attained majority long before the filing of the suit and that she
had not acted in 'good faith' and that while construing that expression, we have to keep in mind
the definition given in the interpretation clause (h) of Section 2 of the Limitation Act. Section 21
of the said Act, which deals with the effect of substitution or addition of a new plaintiff or
defendant, uses this expression in the proviso to sub-section (1) and the limitation can be made to
run from a date prior to the date of amendment only where the omission was due to a mistake
made in good faith. In Shanmuga Chetty's case (supra), the Division Bench of the Madras High
Court had exercised its discretion in favour of the plaintiff or his next friend because the minor
had attained majority only three or four days before the filing of the suit and no useful purpose
could be gained by wrongly showing a major to be a minor. In a pre-emption suit, however, one
or both the parents could have an ulterior motive in filing a suit by wrongly showing a major as a
minor. In my decision in Bhim Sain's case (supra), I had hinted at a possible motive for practising
this deception on the Courts. One other motive could be that a conscientious son, who had
attained the age of discretion, could not be prevailed upon within time to be a party to the
enforcement of a piratical right which can be used as an instrument of blackmail to make the
vendees part with an amount over and above the one that had been mutually agreed upon under
the law of free contract. As observed by Harrison J. in Ghasi's case (supra), even if it is possible
to theorise as to why the plaintiff was shown as a minor, I do not think that there is any advantage
to be gained in doing so as long as the mistake was not shown to be bona fide and there was
gross carelessness and the parties concerned had deliberately misled the Court. Pre-emption is a
personal right and a person who has attained majority has to assert to enforce this right of his
own free will and volition within the time allowed by law and he cannot be hustled in doing so
by any overbearing parents. The learned trial Court has not given any cogent reasons for ignoring
the entry in the register of births, copy Exhibit D.2. The mother's statement leaves hardly any
doubt that this entry relates to the plaintiff. If this birth entry was to be ignored, the next best
evidence was furnished by the electoral rolls, copy Exhibit D. 1, according to which the plaintiff
was about 23 years of age on the date of the institution of the pre-emption suit. It is difficult to
believe that for more than a year, the parents had remained ignorant of the fact that their son had
attained majority long before the suit had been filed on his behalf. In the case of a person, who is
a free agent or who is sui juris, nobody can act as a guardian or as a next friend and the exercise
of such a personal right within time has to be left to the free will and volition of the plaintiff. The
vendees' plea that the suit is collusive, therefore, assumes significance in this case. It can be that
the young boy, who had recently attained majority, could not be trusted with the extra amount
that the parents were hoping to get by launching this piractical instrument of blackmail and that
they wanted to retain a control over the litigation which had prospects of being profitable to
them. No injustice may seem to be involved in exercising jurisdiction against a plaintiff or his
friend where he is seeking to enforce a piratical right. This right is being defeated by the vendees
by lawful means and the plaintiff and his parents are being made to suffer the consequences of
their own gross carelessness, if not deliberate attempts to mislead the Court.

5. Shri N.C. Jain, the learned counsel for the plaintiff respondent argued that no issue about bona
fides or good faith had been framed and that the parties should have an opportunity of producing
their evidence on the point. A party, who is seeking to escape the consequence of his mistake or
omission, has to state the circumstances under which that mistake had been made. Evidence
cannot be led with regard to facts which had not even been pleaded by the party at fault. The
mother and son had persisted in taking up the false position in their pleadings filed on 13th
November, 1969 that the plaintiff was a minor on the date of the institution of suit. They were not
seeking to justify the mistake or omission by pleading any bona fides or good faith. There is,
therefore, no question of giving them an opportunity of proving any facts. The good faith or bona
fides have first to be averred before a party can claim an opportunity of proving any facts. The
good faith or bona fides have first to be averred before a party can claim an opportunity of
proving the averments. I, therefore, feel that the trial Court has wrongly exercised its discretion in
favour of the plaintiff in allowing the amendment of the plaint.

6. I, therefore, accept the revision petition and dismiss the pre-emption suit filed on behalf of
Balwan Singh respondent.

Petition accepted.
Cases Referred.

1Indian Law Reports (1890) XVII Cal 580
2 AIR 1926 Lah 12
3AIR 1932 Lah 322
4AIR 1934 Oudh 124
5Indian Law Reports (1917) XL Mad 743
6AIR 1927 Cal 477
7S.A.O. No. 19 of 1970 decided on 30th November, 1970