JUDGMENT Janardan Sahai, J.
1. This is a plaintiffs' second appeal in a suit for cancellation of a sale deed dated 25.7.1992. The case of the plaintiff/appellants was that on the death of their father the defendant had helped the plaintiffs in many ways. The property in dispute was purchased by the plaintiffs on 9.4.1992 but subsequently the defendant/respondent got a forged sale deed dated 25.7.1992 in his favour prepared by setting up an impostor. The case of the defendant is that the sale deed was a genuine transaction and there was no forgery. It appears that during the pendency of the suit an application was filed by Smt. Manju Devi the mother of the minor plaintiffs as their next friend for withdrawing the suit. This application is Paper No. 56-ga. In this application it was stated that the suit had been filed under a misconception for want of proper legal advice and that the applicant does not want to pursue the suit and it may therefore be dismissed. The statement made in the application being that the plaintiff did not want to pursue the suit and it may be dismissed amounted to an application for withdrawal of the suit. No order was passed by the trial court upon this application and a date for evidence of the parties was fixed. On 16.8.1994 the deposition of Smt. Manju Devi the next friend of the minors was recorded in evidence. She deposed that there remains no dispute with the defendant and that she wants to get the suit dismissed and that the dismissal of the suit would be in the interest of the minors and that she did not want to lead any other evidence.
2. The trial court proceeded to decide the suit on merits. It held that the burden of proof of issue No. 1, which was to the effect whether the sale deed dated 25.7.1992 was liable to be declared as void on the grounds in the plaint was upon the plaintiff. It then proceeded to discuss the plaintiffs evidence and referred to her deposition that she did not want to contest the suit and answered the issue against the plaintiff. The other issues were also decided against the plaintiff and the suit was dismissed on 18.8.1994. An appeal was preferred by the plaintiff/respondent through their next friend. One of the questions raised in the appeal was whether in the circumstances it was a case where the plaintiff had abandoned the suit for which permission under Order XXXII, Rule 7 was required. The appellate court held that the suit had been dismissed for want of evidence and therefore no order for permission under Order XXXII, Rule 7, C.P.C. was required. The appeal was dismissed on 18.8.1998. Aggrieved, this second appeal has been preferred.
3. Substantial questions of law for consideration in this appeal as reframed question Nos. A and B are :
(a) "whether in view of the application for withdrawal of suit and the deposition of the next friend of the minor plaintiffs that there remained no dispute with the defendant and she wants to get the suit dismissed the case falls under Order XXIII, Rule 1, Civil Procedure Code?
(b) whether the trial court erred in law in not passing any order granting or refusing leave under Order XXIII, Rule 1, Civil Procedure Code?
4. The contents of the application that the suit was filed under a misconception for want of proper legal advice and that the applicant does not want to pursue the suit and it may be dismissed indicates that it was really an application for withdrawal of the suit. In the oral deposition also Smt. Manju Devi stated that there remains no dispute with the defendant and she wants to get the suit dismissed. On these facts it is clear that the case fell under Order XXIII, Rule 1. Civil Procedure Code and the application filed by the next friend of the minor was an application to dismiss the suit as withdrawn. This appears to be the correct construction of the application read as a whole even though the prayer was to dismiss the suit.
5. Although no permission was required under Order XXXII, Rule 7, but under the proviso to Rule 1 of Order XXIII, itself, the plaintiffs being minors it was the duty of the Court to have passed an order on the withdrawal application and to have either granted leave or to have refused the leave. If leave were refused by the Court and the next friend would still have persisted in refusing to prosecute the suit doors would have opened under Order XXXII, Rule 9. Civil Procedure Code for removal of the next friend and appointment of another person to act as the next friend. The plaintiffs being minors their interest was required to be guarded. Even where leave is granted to withdraw the suit under the proviso to Rule 1 of Order XXIII, the Court should ordinarily grant liberty to the plaintiffs to file a fresh suit to safeguard their interest. From the application filed by the next friend of the plaintiffs as well as from her deposition in court, it appears that it was a case where the plaintiffs had applied to withdraw the suit and it was necessary for the Court to pass orders on the application. If the plaintiffs were major, the suit would stand withdrawn as soon as the application was filed vide : Smt. Raisa Sultana Begam and Ors. v. Abdul Qadir and Ors., AIR 1966 All 318 (V 53 C 94). But the plaintiffs were then minors, therefore, leave was required under the proviso to Rule 1 of Order XXIII, Civil Procedure Code and withdrawal was not automatic. No decree dismissing the suit could, however, have been passed on the basis that the plaintiffs had failed to prove their case without orders on the application. The course adopted by the trial court in proceeding to take the evidence of the parties and deciding the suit on merits was illegal. Both the questions are accordingly answered in the affirmative in favour of the plaintiffs/appellants.
6. It is now common ground between the counsel for the parties and statement to this effect has been made by both the counsel that the plaintiffs are now major. It is open to the plaintiffs who are now major to elect to pursue the application and withdraw the suit or to continue the suit. In the latter case the parties will be given opportunity to adduce evidence. In the circumstances the decree of both the Courts below is set aside and the trial court may proceed with the suit in accordance with law. The appeal is allowed.