1. This is an application by Charnpak Vashrarin with the prayer that he be allowed to proceed with the appeal And that the title of the appeal be allowed to be amended so as to read him henceforth -as a person appealing on his own right, he having attained the majority on 27-12-1975 In order to understand a big storm in a small tea cup raised in this Civil Application, the basic facts of this litigation are required to be closely noted, with a sense of anguish in our minds that poor litigants are not properly advised or guided at proper stages in the lower courts. and it is because of lack of such diligence and vigilance on the part of the persons advising them, this sort of unhappy situation develops to the detriment of the litigants- The facts -.Which we narrate below will amply bear out this.
2. There was filed a civil suit in the court of the Civil Judge (S. D.) Rajkot, being the special civil suit No. 37 of 1971. The suit had come to be filed in the year 1971 in the name of the present applicant, who was then minor and, therefore, by his next friend and mother Bai Santos V Ashram. The suit was filed for partition of the lands in which said Champak claimed to have his share by reason of his being e member of the joint Hindu family- There was one Chhana Kala, a resident of Rajkot, owning these disputed properties. Said Chhana had two sons, namely, Vashram and Pota. Vashram died as back as in the year 1944, leaving behind him his widow Bai Santok and two daughters Bai Ramblia and Bai Runvar. Said Bai Kunver and Bai Rarnbha were impleaded as the defendants Nos. 3 and4 in the suit and they are the respondents Nos. 4 and 5 in the present first appeal. .One another son of Chhana also was there named Narshi, but he had died in the year 1926. leaving no issues or widow and so for our purposes, he is to be left out of consideration- Said Pola, the brother of decreased Vashram, also had died on 3-4-1957, leaving behind him his widow Ratanbai, the respondent No. 2 before us, a son Dharamsi, the defendant No. I in the still and the respondent No. I before us and e daughter Bai Mani, the defendant No. 2 in the suit and the respondent No. 3 before us and she having expired during the tendency of this appeal, her heirs, the respondents Nos. 311 to 3/5 were brought on the record. Bai Santok had started sore litigation for getting her share in I ' he property left by her husband As a member of 'the joint Hindu family. The only right that was recognised in that litigation was her right of maintenance. Now on 7-4-1970 Bai Santok adopted minor Champak, the son of her daughter Rambha, as her son and the legal effect of it is that Champak is considered As the son of Vashram and, therefore, entitled to the properties left by Vashram in capacity as a member of the joint Hindu family, of which there were two branches, one branch of Vashram and the other branch of Pola. After having adopted a -son, the abovementioned Suit No. 37 of 1971 came Lo be filed on his behalf by his adoptive mother Bai Santok and that said suit had come to be hotly contested. The suit went on up to the latter half of the year 1975. During the tendency of that suit, the contesting defendants had given an application, Ex. 154, dt. 23-7-1975, Alleging that the minor Champak had already attained majority and so Bai Santok had no right to prosecute the suit on his behalf. A reply to that application was also filed by Bai Siantok, acting as the next friend of her Adoptive son. It was at that stage cleared that minor Champak was to attain majority on 27-12-1975. Realising this factual aspect, the said application, Ex. 154, was not pressed by the defendants. By that time, the recording of evidence had been concluded and only thing that remained to be done was the hearing of arguments and then pronouncement of the judgment. By the time the judgment came to be pronounced, this Champak had already attained majority, but no attempt was made to bring him on the record as such by recourse to 0. 32, R. 12 of the C. P. C. and the learned trial Judge by his judgment, dismissed the suit. Now the present appeal No. 65C of 1978 came to be presented, but the curious aspect of it is this the, it came to be presented by Bai Santok as the ne3c friend of Champak, who it is conceded before us had already attained majority on the day the judgment had come to b pronounced by the learned trial Judge, and, therefore, obviously on the day to appeal had come to be presented. Also, with the presentation of the memo of ay peal, an application was also filed for a' ' lowing the Appeal to be filed and prior, securedas an indigent person and the application also was hotly contested, but ultimately it was allowed by this court and that order has become final. That the present application No. 356 of 1S had come to be presented on 2-2-19. This application had come to be granted by the Division Bench of this court on 22--2-1978 and thereafter the prayer for allowing prosecution of the appeal as an indigent person was granted, despite serious objections raised on,behalf of the present respondents Nos. 1 to 3 on the ground that the appeal itself was not completely presented and filed. The learned Judges of this court, who decided the civil application No. 683 of 1983 lei~ the question of maintainability of this present appeal open. The words are:
'So far as the question of maintainability of the present appeal is concerned it raises in its turn further question whether the minor plaintiff, who had become major, could legally file the appeal through his erstwhile guardian-ad-litem and whether correction of the memo of appeal as per the order of this court on 22-2-1978 in civil application No. 356 of 1978 had any effect on the filing of the present appeal within the prescribed period of limitation. On these questions, we do not express any opinion for the present and the said questions are kept open as they can be more effectively dealt with at the time of final hearing of the main appeal'.
3. When the appeal was taken up by for final hearing, the question of maintainability of the appeal was taken up
and when earlier order passed by the Division Bench of this court on this application No. 356 of 1978 is there to put an answer to the contention, the learned counsel Mr, Mehta appearing for Mr. Kothari submitted that this order having been passed ex-parte behind their back, would not bind then and this decision could not be flung in their face to shut them out from raising the contention about the maintainability of the appeal. The perusal of the record showed that this order allowing C. A. 356 of 1978 lied come to be passed ex parte. No rule was issued on that civil application. No arguments appear to have been advanced and the matter has been decided as if no list existed between the parties. It, therefore, occurred to us that the order having been passed ex parte and behind the back of the respondents as they contended ' that order passed on this civil application on '.2-2-1978 should be treated as non est and have had, therefore, ordered that the said application No. 356 of 1978 should heard by us afresh and decide along with it, the question of maintainability of the appeal also because re-hearing of this application has arisen on the preliminary objection to the maintainability of the appeal.
4. The above narration would at once show that though at the stage of the trial it was specifically made known to this plaintiff's guardian that her authority to act for the minor was limited to the period up to 27-12-75, nothing appears to have been done and the things were taken complacently by her and also by her, advocate in the trial court. With the passage of time, this lady, who appears to be aged and also illiterate as we can see from the thumb impressions on the various documents put on the record of this case, lost sight of this legal aspect and presented the appeal and in the title of the memo of appeal, it is mentioned as follows:-
Champak Vashram, being minor by his next friend and mother Santok Vashram, Add. Bhanu Kalavadi Sheri Bedipara, Rajkot.
This appeal was presented in this court on 9-9-1976 and along with it were presented two applications, one for permitting the appeal to be prosecuted in forma pauper is and the other for condonation of delay of nine days, the delay occurring because the appeal filed by an indigent person is required to be filed within 60 days whereas the appeal to be filed by a non-indigent person can be filed within 90 days. In this case, ultimately the court-fees have been paid and, therefore, the question of limitation loses all importance. So the question of the appeal being barred by limitation would not arise.
5. Initially the permission to prosecute the appeal in forma pauperis was granted and so was granted the application for condonation of delay, but subsequently, the respondents Nos. I to 3 pointed out to the court that as the said order of leave to prosecute the appeal in forma pauperis was obtained by fraud, the , court-fees have been paid. Though the learned advocates for the respondents Nos. I to 3 agitated before us that the question of limitation still would survive, in our view, once the court-fees are paid and they are treated as paid on the memo of appeal as presented on the day the memo was presented, the question of limitation would not arise.
6. The serious question very vigorously put forward before us by Mr. Mehta Appearing for Mr. Kothari is that this appeal cannot be said to have been an appeal in accordance with law. It is an appeal presented by a person having no list because an appeal can be presented not by any person like a plaintiff of a suit, but can be presented only by a party in the suit, if he is aggrieved by the judgment or by A. person, who is not a party but who is aggrieved by the judgment, if he seeks and gets the leave of the court to prefer an appeal against that judgment. We accept certain propositions of law canvassed by Mr. Mehta, Aamely, that the appeal can be preferred only by those two categories of persons and not by others, but we do not subscribe to his view that any person can file a suit. It is only that person, who has got a right to file the suit that can do so. So this distinction referred to by the Supreme Court in a different context in the judgment of the Supreme Court cannot be pressed herein. In the case of Sint. Ganga Bai v. Vijay Kumar, : 3SCR882 , it has been laid down that (at p. 1129).
'There is an inherent right in every person to bring a suit of a civil nature and unless the suit is barred by statute, one may, at one's peril, bring a suit of one's choice- A suit for its maintainability requires no authority of law 'and it is enough that no statute bars the suit, But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law'.
This particular observation of the Supreme Court is there to explain the distinction between a right to appeal, which is a creature of statute, as contrasted with OL right to file a suit, which also is limited to a person, referred to u/s. 9 of the Civil P. C. provided he has got a cause of action and a remedy to be sought. The question here is: Can this Champak Vashrarn, on whose behalf and for whose benefit his mother had preferred an appeal without her being an authorised agent as defined in the Civil P. C. be allowed to prosecute the appeal for all purposes or whether said Champak Vashram pleading his bona fide mistake or his ignorance of law can now come forth and request this court that he be permitted to sign this memo of appeal for the purpose of treating the appeal as having been filed by himself. There cannot be any controversy in our view, though Mr. Mehta did not agree, that the appeal was filed for Champak's benefit. It was he who was the appellant, but it appeared that both he and his mother laboured under the impression that the original authority continued and, therefore, the appeal was presented by the mother for and on behalf of the son. We would not say that this is technically right. We would go to the extent of saying that it is legally erroneous also. The question that, however, arises for our consideration is whether this sort of mistake can be visited with the dire consequences of treating the appeal as not having been filed at all. The submission of the respondents is to that effect. We shall examine the various submissions made by Mr. Mehta in that regard,
7. The burden of Mr. Mehta's submission was that a next friend becomes functus officio the day the minor litigating plaintiff attains majority. In support of his submission, he placed heavy reliance on the judgment of the Bombay High Court in the case of Ratanchand v. Jasraj Kasturchand, AIR 1940 Boin 58. It is the judgment of the Division Bench and if there is any ratio of the type canvassed before us it would bind us, it being the pre-reorganisation-of-States pronouncement or the judgment of the Bombay High Court and, therefore, law for us. The question before the Division Bench of the Bombay High Court was about the costs of the defendants. The question was as to whether the minor should be saddled with the costs of the defendants or the next friend should be. It was in this context that the ratio has been laid down. It has been stated that:-
'So long as the plaintiff is a minor there must be a next friend shown on the record who is answerable for costs; but as soon as the minor attains his majority, the next friend is functus officio and prima facie his liability ceases. The former minor plaintiff is bound under 0.'32, R. 12 to elect whether he will proceed with the suit or not. If he elects to proceed with the suit, the title to the record is altered by showing him as a major plaintiff, and he thereupon becomes liable for the costs as from the commencement of the suit and the defendant is, therefore, placed in exactly the same position as he would have been in if the plaintiff had never been a minor. If the minor elects not to proceed with the suit, he can only do so on submitting to an order to pay the costs of the defendant and also the costs of the next friend. There also, the defendant is placed exactly in the same position as he would have been in if the plaintiff had never been a minor ...............'.
So this judgment is confined to the case where the liability for costs of the defendant is to be considered.
8. Mr. Melita's further submission by reference to 0. 41, K I of the , C. P. C. was that under that provision, every appeal could be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the court. His submission, therefore, was that, this memorandum presented to this court was signed neither by the appellant nor by his advocate and, therefore also, it should be held that there is no memorandum of appeal before this High Court and, therefore, there is no appeal also here and on this ground he wanted us to treat appeal as non est and, therefore, liable to be dismissed. Referring to Halsbury's Laws of Wand, 4th Edition, Vol. 24 at p. 476, he reiterated his submission that where an infant who is the sole plaintiff attains full age while the proceedings were-pending, ft was open to that minor to elect to continue the proceedings or not arid if he elected to continue the proceedings, they would be conducted in his own name and he would be liable for the costs of the defendants from the commencement. It is further mentioned there that ff he 4-ects to discontinue them, he may obtain an order to dismiss them on payment of the cost from the commencement or he may take no steps in which case the defendant may apply- to dismiss the proceedings but cannot make the infant pay the costs of them. This observation in the Halsbury's 1,aws of England is almost in pari materia with the provisions of 0. 3Z K 5 of the C. P. C. with this addition that there is reference to the defendants application to the court to dismiss the proceedings, which provision is not there in the Civil P. C. However, even though there is no such provision, at the same time there is no prohibition also, and a defendant put in such a position can certainly request the court to dismiss the result as not being prosecuted properly by a proper person. TW however, does not come In the way of the applicant.
9. Mr. Mehta had also invited our attention to them mm authorities pertaining to the stamp duty where an authority under the Stamp Act once having passed a particular order, had become functus officio and was thereafter having no authority to refuse or review its decision, To us, it appears that this analogical reference is uncalled for because, in our view, this is a case not of a person becoming functus officio, but this is a case of a wrong person presenting the appeal in terms of O.1, R 10 of the G P. C. Mr. Mehta had also urged before us that there was a basic difference between a suit arid an appeal, and pressed into service before us the judgment of the Allahabad High Court in the case of Raj Behari Lai v. Mababir Prased, AIR 1956 AM 310 (FB), There, it was held that a minor defendant against whom decree was posed could not validly institution an appeal through a person other than the guardian was appointed by the High court, but there Also, it has been added that the appellate court may an sufficient cause being shown, allow an appeal to be filed on behalf of the by a person other than the guardian ad litem appointed by the trial court by removing such a guardian and appointing such other 'person as the guardian of the minor from the date of the institution of the appeal. In our view, this judgment does not concern itself with the subject-matter before us. To us it appears that we should recaT1 to our mind the well-known proverb that 'procedure is the hand maid of justice and not its mistress'. Procedural irregularity or lapses here or there cannot be permitted to subvert the substantial cause of justice, unless it could be shown that because of. this irregularity, the other side has been put into an irreversibly adverse position. a 1, R. 10 of the C. P. C. is reproduced below:-
'10 (1). Where a suit has been instituted in the name of the wrong person as plaintiff the court may at any stage
of the suit, if satisfied that the suit has been instituted through a bona fide mistake and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the court thinks just-'
Obviously the above-quoted provision of law refers to a suit and not to an appeal, but S. 107M of the Civil P. C. provides that the appellate court shall have the some powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on courts of original jurisdiction in respect of suits instituted therein. If in respect of a suit instituted in the trial court a minor person files a suit this much his friend so called, under the wrong impression that the alleged plaintiff is continuing to be a minor, the court can certainly allow that wrong name or wrong description of the plaintiff to be rectified. In the case of Taqui Jan v. Obaidulla, (1894) ILR 21 Cal W, the Division Bench of the Calcutta High Court had an identical case to be dealt with. 'Mere a suit was instituted by a person alleging himself to be a minor and the suit was brought through a next friend. Later on, it was found that the plaintiff was not at the date of the institution of the suit in tact a minor and it was insisted that the court should dismiss the suit. The court negatived that prayer by holding that it was not obligatory for the court to dismiss the suit as the defendant could be fully indemnified by the payment of his costs~ The High Court suggested that the proper course in such a situation was for the defendant to apply to have file plaint taken off the file or amended, but even if this prayer was not acceded to by the plaintiff, the Court should not dismiss the nature but should treat the name of the next friend as surpluses and should allow the suit to processed, this case was followed by the Division Bench of the Madras High Court in the case of Shanniuga Chetty v. C. X. Narayana Aiyar, (1917) 'TLR 40 Mad '743 : ~AIR 1918 Mad 916). There, the plaintiff .was described in the plaint as a minor, but had really attained majority some however Aays before the plaint will filed by .his next friend ', be the court. Bona lade belief was found about the alleged plaintiff -of minority and the Division Bench of the High Court ruled that such a suit to While not to be dismissed, but the paint should be returned nor presentation after making the necessary amendments by striking off the description of the plaintiff as a minor suing through best next friend and other consequential alterations in, the plaint.
10. Mr. Mehta submitted that provisions pertaining to a civil suit cannot apply to the presentation of a memo of appeal for which an elaborate provision has been made i1n 0. 41, Rr. 1, 2 and 3 1 the C. P. C It is 4ifficult to agree with the submission made by Mr. Mehta. There is no provision like 0. 1, R. 10 (1) in Order 41 of the Civil P. C. and so by recourse to S. 107(2) of the Civil P. C., the principle of 0. 1, R~ 10 can be invoked while dealing with such an erroneous memorandum of appeal presented to the court. We reiterate that the appeal is by' Champak Vashrarn, but Tough inadvertence or ignorance, both Champak and his mother thought, perhaps the earlier application Ex. 154 having not been brought to their personal notice, that the old position continued, -but mother certainly acted for the son. There was no misgiving about who was presenting the appeal and against what. It was Charnpak's appeal filed in the court through the hand of his mother, who because of her illiteracy, could not know the nice requirement of 1,aw that soon on the attainment of majority, a minor himself can be duly described on the record of the case, We cannot miss one point here. H we allow this mistake which we held to be bona fide to be rectified, raw prejudice is likely to be caused to the other side. It was halfheartedly stated without any specific de-tails that during the tendency of this appeal right from 1978 to 1983, some changes might have been effected in respect of stone parcels of the property. It is nobody's say, much less put on the record, that because we of the cut motion that the appeal was non est, such transactions had been entered into by the 4efendants and, therefore, prejudice was likely to be occasioned to the respon4ents Nos. 1, 2 and 3.
11. In above view of the matter, we, see no difficulty whatsoever in granting the Civil Application No. 35,6 of 19713 and! Accordingly we Wow the correction of the description of the plain, memorandum of appeal. The Application is according 17 allowed, but with this direction that the applicant Champak 7ashrarn shall pay Rs. 1,00/- as the costs of this Civil, application to the defendants-respondents Nos. 1, 2 and 3 in one set.
12. This brings us to the main first appeal. Tri this case, both the sides have any ended their pleasings considerably. The dispute appears to be far deep-rooted are unless a fresh trial ensues, no justice in accordance with law can be meted out to the parties. Keeping intact the right of Mr. D. L. Kothari to move the Supreme Court against our order below the Civil application No. 356 of 1978, he agrees that the appeal should be allowed and the matter may be remanded to the trial court. With the concurrence of Mr. J. R. Nanavati, the whole Matter goes back to the learned trial Judge, who will permit both the sides to get their pleadings amended as per the civil application granted by us and then permit the parties to lead whatever evidence on new points and then decide the matter afresh on all the points, including the question of adoption',-So, technically speaking, both the appeal and the cross objections are allowed with no order as to costs. It is also clarified that on the points on which evidence is already added the parties are not to be permitted to lead further evidence, unless they make out a case for additional evidence.
13. The result is that the first appeal w-Ad the cross-objections are allowed with no order as to costs. The whole matter is remanded to the trial court for decision in accordance with law.
14. At the request of Mr. D. L. Kothari, further proceedings before the trial court shall not be started for the period of six weeks from today, as he says, he wants to move the Hon'ble Supreme Court against our order on the Civil Application No. 356 of 1978. However, if further stay is not granted either by us or by the Supreme Court, this whole litigation of 1971 shall be peremptorily taken on hand by the trial court and it shall decide as early as possible by hearing the matter day-to-day.
The respondent No. 1, who is. present in the court and identified by Mr. D. L. Kothari undertakes to this court that during this period of six weeks if he enters into any document with any party in respect of this property, he shall invariably mention in that-document that this particular litigation between the parties is pending in the court. If any document is so executed, an intimation is to be given to the learned advocate of the appellant at Rajkot. The undertaking shall be filed within a week from today.
15. Order accordingly.