Poorna Chandra Padhi @ Parida Vs. Narasingha Parida (Dead) His L. Rs. Swarnamani Parida and ors. - Court Judgment |
| Civil;Family |
| Orissa High Court |
| Oct-06-1993 |
| First Appeal No. 284 of 1978 |
| S.C. Mohapatra, J. |
| 1994(I)OLR56 |
| Code of Civil Procedure (CPC) , 1908 - Order 32, Rule 4 |
| Poorna Chandra Padhi @ Parida |
| Narasingha Parida (Dead) His L. Rs. Swarnamani Parida and ors. |
| R.K. Mohapatra, B. Routray, K.B. Kar,
S.K. Nayak, S.S. Das and R.K. Das |
| Devananda Misra, Deepak Misra, R.N. Naik, S.S. Hota and Anil Deo for Respondent No. 1(a) and 1(b) to 1(c) |
| Appeal allowed |
| (Sobha Dei and Anr. v. Bhima
|
.....agreement between the orissa state financial corporation and the loanee is a pure and simple contract governed by the provisions of the contract act, 1872 read with the provisions in the act, 1951 and its rules. on the other hand, a confiscation proceeding under the act, 1972 is punitive in nature for commission of a forest offence. thus, by virtue of the provision in section 56 read with section 64 (2) of the act, 1972, the action taken for confiscation of the vehicle cannot be extended to grant protection of the loan advanced by orissa state financial corporation. by doing that it amounts to grant premium to the pick-pockets in as much as, by making payment of the confiscation amount in favour of the orissa state financial corporation the loan burden of the accused of the forest offence is reduced to the extent of the sale proceeds of the vehicle. in other words, on payment of the sale proceeds of the confiscation proceeding to the orissa state financial corporation towards discharge of the loan account of the accused of a forest offence, it would lead to a system to reward him by repayment of his loan. then it does not become a penalty nor the action become punitive,..........cwr 432 (simamani dei v. babaji das and ors.) and 1974(1) cwr 550 (sobha dei and anr. v. bhima alias bhimasen sahu and ors.) on the finding that fathers' sister cannot act as next friend when minor's father is his natural guardian under the hindu minority and guardianship act. both the decisions are distinguishable on facts. besides, these decisions have not taken note of order 32, rule 4, cpc which provides that any person who is of sound mind and has attained majority may act as next friend of minor provided that interest of such person is not adverse to that of minor. therefore, it is not always necessary that a natural guardian would only file the suit. in the present case, the suit h3ving been filed against the natural guardian, plaintiff has to be represented by a next friend. accordingly, dismissal of the suit on this short ground is untenable and is vacated.4. in result, appeal is allowed, suit is remitted back to the trial court for disposal in accordance with law. there shall be no order to costs.
S.C. Mohapatra, J.
1. This is an appeal by she plaintiff against dismissal of the suit.
2. Plaintiff is a minor Suit has been filed against his father (Defendant No. 3) claiming his half interest in the suit properties alleging that his father who has married for the second time being under influence of his second wife ill-treated plaintiff for which he is in custody and care of his father's sister. To protect his half share he filed the suit through his next friend, who is his father's sister.
3. Trial Court dismissed the suit relying on the decision of this Court reported in 1974 (1) CWR 432 (Simamani Dei v. Babaji Das and Ors.) and 1974(1) CWR 550 (Sobha Dei and Anr. v. Bhima alias Bhimasen Sahu and Ors.) on the finding that fathers' sister cannot act as next friend when minor's father is his natural guardian under the Hindu Minority and Guardianship Act. Both the decisions are distinguishable on facts. Besides, these decisions have not taken note of Order 32, Rule 4, CPC which provides that any person who is of sound mind and has attained majority may act as next friend of minor provided that interest of such person is not adverse to that of minor. Therefore, it is not always necessary that a natural guardian would only file the suit. In the present case, the suit h3ving been filed against the natural guardian, plaintiff has to be represented by a next friend. Accordingly, dismissal of the suit on this short ground is untenable and is vacated.
4. In result, appeal is allowed, suit is remitted back to the trial Court for disposal in accordance with law. There shall be no order to costs.