1. The only question for our decision is whether the lower Court has rightly held that this suit is barred by the decision in Suit No. 185 of 1915 of the same Court. That the present plaintiff is the representative in interest of the plaintiff in that suit is not denied. The then defendants were three in number, and the present defendant was one of them. The question is what is the nature of the order disposing of that suit and what is its effect. The terms of the order made clearly show that the Judge who made that order dismissed the suit for plaintiff's default. The order was made at an adjourned hearing and the Court must be taken to have acted under Order XVII, Rule 2, and to have based its order on the provisions of Order IX. It was argued that Order XVII, Rule 3 applied but that is not so. The terms of the order show that the suit was dismissed on account of plaintiff's default and on no other ground. The decision in Chandramathi Ammal v. Narayanasami Aiyar ILR (1990) Mad. 241 appears to contain a correct exposition of the relative scope of Sections 157 and 158 of the Code of Civil Procedure of 1882, and that decision is equally applicable to Rules 2 and 3 of Order XVII. As Order XVII, Rule 2, applies we must refer to Order IX for the authority to dismiss the suit.
2. So far as the first two defendants were concerned Order IX, Rule 8, clearly applies. They were present and plaintiff was absent. But they are not parties now and the question is how the case stands as between plaintiff and defendant 3. I find it difficult to follow the lower Court in holding that for the purposes of Rule 8 of Order IX it is sufficient if one or some of several defendants appear. It is necessary, as I read the law, to take the case of each defendant on its own merits. Here the order itself is merely one dismissing the suit, and so far as the present defendant is concerned may be referred to Order IX, Rule 3, just as readily as to Order IX, Rule 8. In the one case a subsequent suit is barred, in the other it is not barred. In the case of several defendants the consequences of an order of dismissal need not necessarily be the same against all. The present defendant was absent and prima facie therefore the order of dismissal as between him and the plaintiff would not bar a subsequent suit.
3. But there is a further fact which requires consideration. The present defendant was (and is) a minor. In the previous suit he was at the time represented by a proper guardian ad litem, the Nazir of the Court. At the date when the suit was dismissed the Nazir's appointment had terminated and no guardian had been appointed. A minor defendant is a party to a suit in the eye of the law, but without the appointment of a guardian it was not possible for him to appear. It was in fact, owing to the absence of any guardian, that the suit stood adjourned. The Nazir's appointment was cancelled because the plaintiff failed to furnish him with funds as directed by the Court, but the suit was not dismissed owing to plaintiff's failure in this respect. At the date of the dismissal there was no guardian and the minor defendant was not therefore represented. Now the provisions of Order XXXII, Rule 3 are imperative, and without complying with those provisions the Court could not make any decree as between the plaintiff and the minor defendant. As between these parties therefore any order is (in my opinion) a nullity. And the second suit cannot therefore be barred.
4. I would, therefore, reverse the decree of the lower Court and remand the suit for a disposal on the merits. Costs to be costs in the cause.
5. I concur in the order proposed by my learned brother.
6. The facts connected with the previous suit filed by Devohand and his son Diga in 1915 have been accurately stated in the judgment of the lower Court. It is clear on those facts that the order dismissing the suit for default is referable to Order XVII, Rule 2 and not to rule 3 of that Order. By the provisions of Rule 2, the order must be taken to have been made under Order IX, Rule 8 as regards defendants 1 and 2 in that suit, who were present on the date of the order.
7. The important question is as to what is the effect of that order on the present suit. In order to determine that it is necessary to consider whether the adopted boy was effectively made a party to the suit of 1915. On the admitted facts I am of opinion that he was really not a party to that suit at all at the date of its dismissal. He was joined as defendant No. 3 to the suit, but the first guardian for the minor proposed by the plaintiffs in that case was not accepted by the Court. Ultimately the Nazir of the Court was appointed the guardian ad litem of the minor. But in consequence of the plaintiffs in that suit having failed to supply the necessary funds to the Nazir, his appointment as the guardian ad litem was cancelled by the Court. The suit was then adjourned to enable the plaintiffs to propose another guardian. They proposed Laxmibai the then defendant No. 2, but she refused to act as such. On the date of the dismissal of the suit in fact there was no guardian of the minor for the suit, as required by the Code of Civil Procedure, and it was not possible for the minor to appear on that day. Under those circumstances I am of opinion that really he was not a party to the suit at all on that day: and it is clear that no order binding on the minor could have been made in the suit, The order of dismissal must be held to be an order made on the footing that the only defendants in that suit were defendants 1 and 2 (i. e. the natural father and the adoptive mother of the adopted boy). On this footing I think that the previous suit is no bar to the maintenance of the present suit. Order IX, Rule 9, provides that the plaintiffs shall be precluded from bringing a fresh suit in respect of the same cause of action. The order of dismissal affects the parties to the suit and cannot be held to apply to a fresh suit which is filed against the adopted boy who was not a party to that suit. It is urged for the respondents that the rule refers to the same cause of action and does not require that the parties to the fresh suit should be the same in order that the bar created by the rule may take effect. No authority is cited in support of this proposition; and I am not prepared to hold that the rule bars a suit against a person, who was not a party to the suit dismissed for default under Rule 8.
8. Apart from that consideration, I am not satisfied that the cause of action in the present suit is the same as that in the previous suit. The previous suit was against the natural father and the adoptive mother of the adopted boy. Any order in that suit could not have affected the adopted boy. No doubt the principal allegation in the plaint -related to the invalidity of the adoption. But there were further allegations made against the defendants in that suit, which were personal to themselves as to their fraudulent and deceitful acts and intent. The relief was claimed against them only. Even assuming that the allegations other than those relating to the invalidity of the adoption were not material, I am unable to hold that the cause of action against the adoptive mother and the natural father, if any, is the same as that against the adopted boy. In the present suit neither the natural father nor the adoptive mother is a necessary or a proper party; and though there may be apparent similarity between the two causes of action, and though the ground covered by the evidence necessary to prove the material allegations in both the suits may be common to a large extent, I feel clear that the cause of action, if any, against the natural father and the adoptive mother is quite distinct from that against the adopted boy.
9. I am, therefore, of opinion that rule 9 is no bar to the present suit.