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Achhaiber and anr. Vs. Smt. Shakilunnisa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 333 of 1983
Judge
Reported inAIR1984All275
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rule 12
AppellantAchhaiber and anr.
RespondentSmt. Shakilunnisa Bibi and ors.
Appellant AdvocateS.K. Verma, Adv.
Respondent AdvocateJhaminula Hasain and ;Shilta Pd., Advs.
DispositionPetition dismissed
Excerpt:
civil - attainment of majority - order 32 rule 12 of code of civil procedure, 1908 - respondent attained majority during pendency of appeal - he had a choice either to come on the record and conduct the defense himself or allow the case to proceed as though he was still a minor - others have no locus standi to move application for issuing notice to respondent informing about pendency of appeal. - - he has placed reliance upon the ruling mentioned in the impugned judgment as well as the ruling reported in [1970]1scr457 a......appeal before the board of revenue, hence according to the rule of natural justice they should get notice of the pendency of this appeal and after serving notice to them the appeal be heard. the prayer of the petitioner-appellants was refused by the learned member board of revenue through his order dated 29-10-1982. as is evident from annexure '1' attached with the writ petition. feeling aggrieved by the order dated 29-10-1982 the petitioners have approached this court under article 226 of the constitution.3. the learned counsel for the petitioner-appellants has contended before me that the principle of natural justice requires that a person should be heard before any adverse order against him is passed. in such a circumstance if the appellants succeed the respondents who have become.....
Judgment:
ORDER

K.P. Singh, J.

1. By means of this writ petition the petitioners have prayed for quashing the order of the Board of Revenue dated 29-10-1982 contained in Annexure '1' attached with the writ petition.

2. Shorn of unnecessary details it appears that the petitioners-appellants applied to the court for issuing notice to some of the respondents in the appeal on the allegations that they had become major during the pendency of the second appeal before the Board of Revenue, hence according to the rule of natural justice they should get notice of the pendency of this appeal and after serving notice to them the appeal be heard. The prayer of the petitioner-appellants was refused by the learned member Board of Revenue through his order dated 29-10-1982. as is evident from Annexure '1' attached with the writ petition. Feeling aggrieved by the order dated 29-10-1982 the petitioners have approached this Court under Article 226 of the Constitution.

3. The learned counsel for the petitioner-appellants has contended before me that the principle of natural justice requires that a person should be heard before any adverse order against him is passed. In such a circumstance if the appellants succeed the respondents who have become major during the pendency of the appeal will not be bound by the decision and the decision can be set at naught in no time hence it was necessary for the court to issue notice to the respondents who had become major during the pendency of the appeal. The impugned order is arbitrary and deserves to be quashed.

4. During the course of arguments the learned counsel for the petitioners has not been able to cite a direct case in support of his contention and he has frankly admitted that under the provisions of Order 32 C. P. C. there is no specific provision under which the application for issue of notice to the respondents who had become major during the pendency of the second appeal could be issued, but he emphasised that on the principles of natural justice it was incumbent upon the court to issue notice to the respondents who had become major during the pendency of the second appeal. He has placed reliance upon the ruling mentioned in the impugned judgment as well as the ruling reported in : [1970]1SCR457 A. K. Kraipak v. Union of India.

5. The contention of the learned counsel for the petitioners during the course of arguments to the effect that the moment a minor respondent becomes major the provisions of Order 32 C. P. C. would cease to apply and the general principles of natural justice would be attracted docs not appear to me as a correct contention. In this connection it is proper to mention the ruling reported in AIR 1949 All 169 Sheomangal Singh v. Birendra Bahadur Singh wherein a Division Bench of this Court has made the following observation:--

'...... Order 32, Civil Procedure Codeprovides for the course to be followed inthe case of a minor plaintiff or applicantattaining majority and Sub-rule (5) ofRule 12 lays down that no order discharging a next friend and permitting aminor plaintiff to proceed in his ownname shall be made without notice tothe next friend. The question is whetherit is necessary or not to give such noticeto the next friend before he is discharged in a case in which the defendant (inthe present case the respondent) hasattained majority. Order 32 is silent upon this point, and we have had somedifficulty in deciding whether it is opento a court or not, to discharge the nextfriend of a minor defendant or a minorrespondent when he has attained majority without giving notice to such nextfriend. It appears, however, that thereis an important difference between a'minor plaintiff or a minor appellant'and a 'minor defendant or a minor respondent' and it may be that the reasonwhy no provision has been made in theCode in respect of a minor defendant ora minor respondent attaining majorityduring the pendency of the suit is, aspointed out by Chitaley and Rao in theircommentary on the Code of Civil Procedure, that while a plaintiff on becoming a major can elect either to go onwith or put an end to the litigation, thedefendant has no such choice available tohim and the suit must proceed againsthim notwithstanding his becoming amajor.'

5A. In AIR 1926 Cal 1053 Drupad Chandra Naskar v. Bindumoyi Dasi it has been observed as below:--

'Where a minor defendant represented by guardian ad litem attains majority during proceedings, a duty lies on him when he attains majority to discharge his guardian ad litem and appear himself, even though the plaintiff knows that the minor attained majority.'

6. In AIR 1928 Mad 294 Lanka Sanyasi v. Lanka Yerran Naidu a Division Bench of that Court has made the following observation:--

'... No such consideration is available in respect of the defendant. A defendant having been made a party defendant to the action may no doubt confess judgment but has no such right of election as the plaintiff has. That is probably the reason why no provisions have been made in the Civil Procedure Code in respect of a minor defendant attaining majority. Apparently, therefore, we must take it as found by the learned Judges in that case, that the minor defendant who comes of age may if he thinks fit come on the record and conduct the defence himself. If, however, he does not do so and allow the case to proceed as though he was still a minor without bringing to the notice of the Court the fact of his having attained majority, then he must be deemed to have elected to abide by the judgment or adjudication by the Court with respect to the matters in controversy on the basis of the suit at the time. That is how the learned Judges came to the conclusion in that case that a judgment given by a competent Court against a defendant albeit a defendant who had during the pendency of the suit attained majority having ceased to be a minor, is not a nullity. Thai view is based on sound principle.'

7. In the present case the defendants-respondents have become major during the pendency of the appeal. Moreover the respondent in an appeal stands in the same position as a defendant in the suit. Hence in the present case in view of the above quotations of Madras High Court I am unable to hold that the impugned order of the learned Board of Revenue suffers from any patent error of law. The learned Member has indicated in the impugned order that the petitioners-appellants had no locus standi to move the application which is quite correct in view of the provisions of Order 32 C. P. C. He has also indicated that the defendants respondents, if they want to appear before the Court may apply for requisite relief. In such a circumstance, I think that the impugned order has taken correct view and the contention of the learned counsel for the petitioners to the effect that the moment the respondent becomes major the provisions of Order 32, C. P. C. would cease to apply is neither correct nor acceptable to me.

8. It is note-worthy that if the minor respondents, who have become major have not elected to appear before the Court in their own right, they would be bound by the decision in the appeal and the contention of the learned counsel for the petitioners that if they succeed in the appeal, the judgment would be rendered a nullity at the instance of the minor respondents who became major during the pendency of the appeal does not appear correct and sound contention.

9. In the result, the writ petition fails and is accordingly dismissed.

10. There would be no order as to costs.


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