IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No. 228 of 2011 Decided on: 06.07.2011 Dodu Ram & others …Petitioners. Versus Rameshwari Devi & others …Respondents. Coram The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting?1 No. For the petitioners: Mr. Ajay Chandel, Advocate. For the respondents: None. Deepak Gupta, J. (Oral) This petition is directed against the order dated 26th April, 2011, whereby the learned trial Court permitted Smt. Dagan Devi to withdraw the suit filed by her on behalf of her daughter Rameshwari Devi. 2. The undisputed facts of the case are that a suit was filed by Dagan Devi on behalf of her daughter Rameshwari Devi against the present petitioners and proforma respondents. In this suit, it was claimed that Rameshwari Devi was minor and, therefore, the suit was filed through her mother and natural guardian Smt. Dagan Devi. Thereafter Smt. Dagan Devi, mother 1 Whether the reporters of local papers may be allowed to see the Judgment? -: 2 :- of the plaintiff, moved an application for withdrawal of the suit under Order 23 Rule 1 (3) CPC claiming that at the time of filing of the suit itself, Rameshwari Devi was not a minor and this fact came to her knowledge when she saw the school records of Rameshwari Devi. The application was opposed, but the learned trial Court permitted the suit to be withdrawn with the liberty to file a fresh suit. 3. The main contention on behalf of the petitioner is that since Rameshwari Devi was a major at the time when the suit was filed and she admittedly was a major when the application under Order 23 Rule 1 (3) CPC was filed, the application should have been moved by her and not by her mother Smt. Dagan Devi. It is contended that no application was maintainable on behalf of the mother. 4. This Court is exercising supervisory jurisdiction under Article 227 of the Constitution of India. Technically, the petitioner may be right that since Rameshwari Devi was a major, nobody could have represented her interest. However, as urged by the petitioners/defendants themselves, Rameshwari Devi was major even at the time of filing of the suit. If she was major at the time of filing of the suit, the suit itself was not properly constituted before the learned trial Court. Therefore, even if the suit had been dismissed whether on merits or for non- prosecution or for any other reason, it would be res judicata in any subsequent proceedings because Rameshwari Devi herself -: 3 :- had not filed any suit. Rameshwari Devi cannot be barred from filing any suit on the basis of the suit out of which the present proceedings arise. Even if the stand of the petitioners/defendants is accepted to be correct, there was no properly constituted suit by Rameshwari Devi. Therefore, the suit was defective and Rameshwari Devi could not have been prevented from filing a fresh suit. 5. The petition is, therefore, rejected in limine. (Deepak Gupta) Judge July 6, 2011 (rajni)