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Madho Singh and anr. Vs. Lala Keshab Deo and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All656; 136Ind.Cas.375
AppellantMadho Singh and anr.
RespondentLala Keshab Deo and anr.
Excerpt:
.....the irregularity, a decree or order could be made against the minor and if the minor had [no possible defence to the proceedings taken against him in which the order or decree complained of was made, he can-not challenge the order or decree complained of simply on the ground of irregularity. he does not say that the arrears of rent have since been made good since the order of ejectment had been made, on 11th april 1927. he does not even say that an offer to make good the arrears was made and was rejected......us, and hoti lal. the zamindar was lala keshab deo. the rent of the occupancy holding being in arrears, proceedings were taken by lala keshab deo under section 81, agra tenancy act, 1926. this rule of law laid down that it was open to a landholder to apply to the tahsildar for issue of a notice to his tenants for payment of arrears of rent and for his ejectment in case of default. a notice was issued to hoti lal, and also to madho singh under the guardianship of his uncle hoti lal. it has been found as a fact that hoti lal had no interest adverse to madho singh. the tenants did not appear. the arrears of rent being not made good, an order for ejectment was made on 11th april 19-27 and a formal delivery of possession was effected on 29th april 1927.3. the tenants, in spite of the.....
Judgment:

Mukerji, J.

1. This case has been referred to a Bench of two Judges on the ground that the case involves a point of some difficulty.

2. The facts of the case briefly are these: There were two occupancy tenants of a holding, e.g., Madho Singh the defendant-appellant before us, and Hoti Lal. The zamindar was Lala Keshab Deo. The rent of the occupancy holding being in arrears, proceedings were taken by Lala Keshab Deo under Section 81, Agra Tenancy Act, 1926. This rule of law laid down that it was open to a landholder to apply to the tahsildar for issue of a notice to his tenants for payment of arrears of rent and for his ejectment in case of default. A notice was issued to Hoti Lal, and also to Madho Singh under the guardianship of his uncle Hoti Lal. It has been found as a fact that Hoti Lal had no interest adverse to Madho Singh. The tenants did not appear. The arrears of rent being not made good, an order for ejectment was made on 11th April 19-27 and a formal delivery of possession was effected on 29th April 1927.

3. The tenants, in spite of the order of ejectment and delivery of possession stuck to the land and the landholder Keshab Deo had to bring the suit out of which this appeal has arisen, for ejectment of the tenants in the civil Court and for damages.

4. Hoti Lal has not defended the suit but Madho Singh has and his sole ground of defence is that he was not properly represented in the previous proceedings.

5. There can be no doubt that the Civil Procedure Code applies to the proceedings in the revenue Court under the provision of Section 264, Tenancy Act, and it was incumbent on Keshab Deo to formally make an application for appointment of a guardian. The irregularity is there and the question is: What is the result of that irregularity?

6. In a series of cases starting with Wallian v. Banke Behari [1903] 30 Cal. 1021 followed in Ram Briclch v. Tarah Tewari [1916] 33 I.C. 805 and Chattar Singh v. Tej Singh [1920] 59 I.C. 671 it has [been held that the minor who was not [properly represented in the previous litigation cannot have the decree or order made against him set aside on the sole ground of irregularity, but must show that he was really prejudiced by that order. If, in spite of the irregularity, a decree or order could be made against the minor and if the minor had [no possible defence to the proceedings taken against him in which the order or decree complained of was made, he can-not challenge the order or decree complained of simply on the ground of irregularity. The reason for this rule is obvious. Order 32, Civil P.C., contains a rule of procedure and procedure is meant only for the purpose of justice. If there has been done substantial justice to the minor's case, the mere fact that there had been some defect in the procedure cannot matter.

7. In this particular case before us the minor Madho Singh takes exception to the proceedings on the ground of irregularity in the appointment of a guardian and on that ground alone. He does not say that the arrears of rent had really been paid up when the proceedings were taken under Section 81, Tenancy Act. He does not say that, if a proper guardian (other than Hoti Lal) had been appointed the arrears of rent would have been paid off. He does not say that the arrears of rent have since been made good since the order of ejectment had been made, on 11th April 1927. He does not even say that an offer to make good the arrears was made and was rejected. In these circumstances, we do not see how the minor can say that he has been prejudiced by the proceedings taken against him and Hoti Lal.

8. In the circumstances we think that the decrees of the Courts below are right and we dismiss this appeal with costs including counsel's fees in this Court on the higher scale.


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