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Kanhaiya Lal and anr. Vs. Mr. Thomas Skinner and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1936All806; 165Ind.Cas.645
AppellantKanhaiya Lal and anr.
RespondentMr. Thomas Skinner and anr.
Excerpt:
- - 4. even in those cases the court on being satisfied of the allegations made in the suit very often simply vacates the decree of the former suit and revives the suit after giving an opportunity to the plaintiff of the former suit to appoint a guardian for the minor or insane defendant. in cases like these all that a court has got to see is if any prejudice has been caused to any particular party and to see that that grievance is removed......kanhaiya lal, the plaintiff in the present suit, and gobind swarup, defendant 2 of the present suit. thomas skinner, defendant 1 of this suit enforced his right of pre-emption in respect of that sale. the trial court gave a decree for possession of the pre-empted property subject to the payment of rs. 16,268 to the vendees by thomas skinner. both thomas skinner, the plaintiff of that suit, and the two vendees, namely kanhaiya lal and gobind swarup, filed appeals in the high court. it is said in the present suit that at the time when the appeals were filed thomas skinner was insane, but nobody acted as his next friend either in the appeal filed by thomas skinner or as his guardian when thomas skinner was impleaded as respondent, and because of this defect the decrees that were passed.....
Judgment:

1. This is an appeal by the plaintiff whose suit for a declaration that decrees Nos. 475 and 497 of 1925 passed by the High Court of Allahabad be declared to be null and ineffectual as against the plaintiff. The facts giving rise to the suit may be briefly stated. Certain property was sold to Lala Kanhaiya Lal, the plaintiff in the present suit, and Gobind Swarup, defendant 2 of the present suit. Thomas Skinner, defendant 1 of this suit enforced his right of pre-emption in respect of that sale. The trial Court gave a decree for possession of the pre-empted property subject to the payment of Rs. 16,268 to the vendees by Thomas Skinner. Both Thomas Skinner, the plaintiff of that suit, and the two vendees, namely Kanhaiya Lal and Gobind Swarup, filed appeals in the High Court. It is said in the present suit that at the time when the appeals were filed Thomas Skinner was insane, but nobody acted as his next friend either in the appeal filed by Thomas Skinner or as his guardian when Thomas Skinner was impleaded as respondent, and because of this defect the decrees that were passed subsequently by this Court are null and void.

2. When the appeals came for hearing before this Court, appeal No. 475 filed by Kanhaiya Lal and Gobind Swarup was dismissed subject to the payment of costs to Thomas Skinner, but the appeal of Thomas Skinner, namely first appeal No. 497 of 1925, was allowed, and the judgment of the trial Court was reversed. The position therefore is that by virtue of the order in the two appeals Lala Kanhaiya Lal, the plaintiff of the present suit, was made liable to pay certain costs to Thomas Skinner and certain sums which he had received in excess, and the object of the suit is really to avoid the payment of such costs and excess sum. In the plaint, as it originally stood, there was no allegation that Thomas Skinner was insane at the time when he filed the appeal, and para. 4, as it stood, was admitted by the guardian of Thomas Skinner, the defendant in the present suit. This cannot therefore be said to be an admission by the defendant that be was insane when the appeal itself was filed. There was an amendment later on of para. 4 of the plaint and then it was alleged that Thomas Skinner was insane at the time when the appeal was filed and he could not prefer an appeal 'without the appointment of a guardian,' obviously, the plaintiff meant 'without the appointment of a next friend.' After the amendment of the plaint there was no admission of this part of the plaintiff's case, but it was contended

that Thomas Skinner was never adjudicated to be insane nor was the objection regarding his insanity raised in Appeals Nos. 475 of 1925 and 497 of 1925, nor did the Court make any inquiry.

3. The position therefore is that in the case in which Thomas Skinner was a respondent, it was the duty of the present plaintiff to see that he was properly represented; whereas in the case in which Thomas Skinner was the appellant it might be argued that there was a slight irregularity, but after all anybody can file a suit or an appeal on behalf of a minor or a lunatic and all that that next friend undertakes is the liability, in certain circumstances, to pay the costs, if the suit or the appeal is dismissed. In the present case the decree is in favour of the lunatic and the lunatic has in no way been prejudiced by the aforesaid irregularity. Learned Counsel for the plaintiff-appellant has not been able to show any authority in support of his contention that a decree passed under such circumstances is void. He however has sought to gather strength by bringing the analogy of cases where a decree has been passed against a minor or a lunatic and a suit subsequently has been brought for the avoidance of that decree by the minor or the lunatic on the ground that he was not properly represented in the suit in which a decree was passed against him.

4. Even in those cases the Court on being satisfied of the allegations made in the suit very often simply vacates the decree of the former suit and revives the suit after giving an opportunity to the plaintiff of the former suit to appoint a guardian for the minor or insane defendant. In cases like these all that a Court has got to see is if any prejudice has been caused to any particular party and to see that that grievance is removed. In the present case neither the plaintiff nor the defendant suffered any prejudice by reason of the irregularity, and we are of the opinion that the decision of the Court below refusing to give any relief to the plaintiff is correct, and does not call for any interference. In any case, the former decrees could not be a nullity and the utmost that could be done was to revive those appeals and appoint a proper next friend or a proper guardian and to allow the appeal of the lunatic to be continued by a proper next friend and the other appeal to be continued after the appointment of a guardian for the respondent. But, as we said before, under the circumstances of the present case, no prejudice has been caused to the person suffering under a disability, and it is not necessary to adopt that course. For the reasons given above, we dismiss this appeal with costs.


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