1. This is an appeal against the decision of the Subordinate Judge, Masulipatam, in O.S. No. 165 of 1952. The facts relevant for the disposal of this appeal are briefly these :
2. On hehalf of a minor, Chodavarapu Venkata Satyanarayana his next friend, one Vinnakota Rajagopalarao instituted the present suit in forma pauperis in the year 1949 praying first for the cancellation of the decree in O.S. No. 451 of 1944, on the file of the District Mun-siff Court, Masulipatam, and A.S. No. 90 of 1947 on the file of the Subordinate Judge's Court, Masulipatam, and secondly, for the partition of the plaint schedule properties and for the due allotment of the sliare of the plaintiff and separate possession thereof.
3. Into the various allegations contained in the plaint and the counter allegations made by the defendants in their written statements, we do not propose to enter- The suit was being adjourned from time to time for steps and service. Eventually, issues were settled on 21-9-1953, and the suit was set down for trial. On 1-2-1954 an application was made on behalf of the1 plaintiff for the addition of new parties and the suit was being adjourned for taking steps to serve the additional parties.
After service the case was adjourned several times as neither side was ready. Eventually it was posted for trial on 4-3-1955. On that date an application for an adjournment was made on behalf of the next friend of the plaintiff, as lie was unready to proceed with the trial- The suit was finally adjourned to 5-4-1956. On that date the plaintiff's next friend was absent and no steps were taken by him to prosecute the suit though the defendants and their counsel were ready to proceed with the trial.
The learned Judge thereupon passed an order adjourning the suit for trial to 15-4-1955 on condition that the plaintiff's next friend should pay to defendants a sum of Rs. 25/- as costs. On 15-4-1955 when the case was called it transpired that the plaintiff's next friend did not pay the costs in conformity with the directions given by the court on 5-4-1953. He filed an application supported by an affidavit on 14-4-1955 requesting the court to set aside the order made on 5-4-1955 directing him to pay Rs. 25/- as costs to the defendants.
In that application he stated that he was suffering from fever from 1-4-1955 to 14-4-1955 and that he was taking medicine from one Dr. K. Subbarao. In the affidavit he stated that during the week previous to the filing of the affidavit he was serious for more than three days and was also unconscious and, therefore, could, not attend the court on 5-4-1955 or send instructions to his counsel. In support of that application he relied on an endorsement made on his application by a medical practitioner to the following effect:
'The contents of this are true. He taking medicine from me'.
The learned Judge rejected the application to set aside the previous order and having done so, dismissed the suit on the ground that, inasmuch as the conditional order had not been complied with, he had no option left but to dismiss the suit and accordingly did so directing the plaintiffs next friend to pay the court-fee due to the Government and costs to the defendants. This appeal is against that order.
4. The appellant has filed a separate Civil Revision Petition (C.R.P. No. 187 of 1956) against the order of the Subordinate Judge-dated 15-4-1955 rejecting the application to cancel the order directing the payment of costs, made on 5-4-1955- We will deal with the revision petition separately.
5. In this appeal, Mr. Narasimha Rao, the learned counsel for the appellant, contended that there was no justification for the learned Subordinate Judge in not accepting the explanation tendered by the plaintiff's next friend for his absence on 5-4-1955- It is argued that the statement of the next friend was supported by the medical opinion of Dr. Subbarao regarding his illness, and that the defendants had not filed a counter affidavit challenging the truth of the statement made by the next friend regarding his illness.
We do not think that the failure to file a counter affidavit is at all decisive in this case, because we find from the order made by the learned Subordinate Judge on 15-4-1955 that Bhirnaraju the counsel for the defendant had opposed the application to cancel the order dated 5-4-1955 and had argued that the next friend was never ill and that the allegations were all false. The learned Judge did not accept the explanation tendered by the next friend as a sufficient explanation for his absence on 5-4-1955. We are not satisfied that there were adequate grounds for absenting himself for trial on 5-4-1955 and we can see no justification for his not complying with the order for the payment of costs.
6. It is contended by Mr. Narasimhji Kao,. that the Court should not penalise the minor for want of diligence of (he next friend and that every latitude should be given in a case of this kind. It is also argued that even if the court should feel obliged to dismiss the action for laches and default of the next friend, it should do so, only after specifying the circumstances in which the dismissal was made, so that a suit by another next friend or the minor himself when he comes of age would not be precluded. It is urged that since the learned Judge has not clarified the position, the order should be set aside On that ground alone.
7. It is true that the court must show indulgence in the case of actions commenced on behalf of minors in the matter of granting adjournments in order to enable the next friend to prosecute the suit. But that does not mean that there is an obligation on the part of the Courts to adjourn the suits indefinitely. In every case in which a suit is dismissed for the laches of tin; next friend, it cannot be said that there is a sufficient cause for the restoration of the suit within the meaning of Order 9, Rule 9 G.P.C. In a full and elaborate judgment in Vaithilinga Naidu v. Devanai Ammal, ILR (1948) Mad 719 : (AIR 1949 Mad 46). Govindarajachari, J., sitting with Bell, J. observed:
'If the non-appearance of the next friend is the result of collusion between him and the defendant or if the next friend assumes for whatever reason, an altitude of hostility against the minor plaintiff and consequently refrains from appearing, there may be 'sufficient cause' for the restoration of the suit'.
'Where a next friend is negligent or deliberately obstructive and the suit is dismissed for his non-appearance, there is, in our opinion, no sufficient cause for such non-appearance within the meaning of Order IX Rule 9 and, therefore, no ground for restoration.
8. The view above expressed is based not only on a sound principle, but practical convenience, as Otherwise every case in which the next friend is absent, be the reason what it may, either the suit cannot be dismissed, or if dismissed, must be restored. That is why the learned judge made a practical suggestion in the interests of the minor to the effect that where due to the negligence or default of his next friend a minor's suit is dismissed, it would be right and proper that the Court should record the circumstances under which the suit was dismissed, so that it may not preclude the possibility of another next friend continuing the suit or the minor himself filing a suit after he attains majority. We are in respectful agreement with both the reasoning of Govindarajachari, J., and the suggestion he made for the safeguarding of the interests of the minors.
9. Mr. Narasimha Rao has strongly relied on a bench decision of the Andhra High Court in Venkataramayya v. Prakasa Rao, 1955 Andh LT (Civ.) 287 : (AIR 1957 Andh Pra 293), and in particular On the following observations :
'When the court is satisfied that the guardian had neglected his duty to his ward, it is incumbent upon the court to protect the interests of the minor from the consequences of such negligence''.
Granting adjournments at the instance of the minor for whatever reason is not the only way in which the interests of the minor could be safeguarded. Where the court is satisfied that there are no reasons for the absence of the next) friend, it can dismiss the suit and yet protect the minor's interests by recording the circumstances in which it was constrained to take that step, so that a subsequent suit by another next friend or by minor himself when he attains majority, may not be precluded.
A suggestion was made that the learned Judges who decided the case in 1955 Andh LT 287 : (AIR 1957 Andh Pra 293) did not fully approve of the position in ILR (1948) Mad 719: (AIR 1949 Mad 46). We are unable to share-this view. It is true that in the latter case there is an observation that the decision of the Madras High Court in Peda Satyam v. Krishnamurthy, ILR 58 Mad 1045 : (AIR 1935 Mad 435) was not brought to the notice of the learned Judges who decided the case in ILR (1948) Mad 719 : (AIR 1949 Mad 46).
In ILR 58 Mad 1045 : (AIR 1935 Mad 435), which was a case of a minor defendant, Curgenven and King JJ,, held that the default of a guardian in wrongfully allowing a claim against a minor defendant to be decreed ex parte was a sufficient cause within the meaning of Order 9, Rule 13 C.P.C. In our opinion, there is nothing in the judgment to impair the authority of the decision of Bell and Govindarajachari, JJ. in ILR (1948) Mad 719 : (AIR 1949 Mad 48). We are not persuaded that a consideration of the above decision would have led to a different conclusion in the latter case.
10. Mr. Narasimha Rao, contended thafi the direction to pay costs against the next friend would practically foreclose the suit by the minor and such a direction should not have been made. The costs are in the discretion of the courts (Vide Section 35 C.P.C.). In granting an adjournment, it is competent for the Court to direct payment of the costs (vide Order 17, Rule 1 (2) C.P.C.). If that order had not been complied with, it is competent for the court to dismiss the suit (vide Order 17, Rule 3, C.P.C.) There is nothing in the nature of a legal embargo on a court granting costs against minor's estate. However regrettable it might be, in certain cases, there can be no question as to the power of the court.
11. Since we are dismissing this, appeal we think it right to make it clear that the suib was dismissed on account of the default and negligence of the next friend. The dismissal of the suit shall not preclude another next friend filing a suit, or in any way, prejudice a suit which the minor may be advised to file after attaining majority in respect of the reliefs asked for in the present suit.
12. We see no reason, therefore, to interfere with the decision of the learned Subordinate Judge. This appeal is dismissed withcosts of the contesting respondents. The plaintiffs next friend will pay the court fee on thememorandum of appeal.