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Jawanmal Vs. Kantilal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 45 of 1953
Judge
Reported inAIR1954Raj246
ActsCode of Civil Procedure (CPC) , 1908 - Sections 97, 104, 105, 115 and 151
AppellantJawanmal
RespondentKantilal and ors.
Appellant Advocate Chandmal and; Meghraj, Advs.
Respondent Advocate Pukhraj, Adv. for Non-Applicants Nos. 1, 2, 4 and 5 and; Magraj, Adv. for Non Applicant No. 3
DispositionRevision dismissed
Cases ReferredMd. Raza v. Ram Saroop
Excerpt:
.....decree against him even though he is not on the record, and still proceeds to pass a final decree against him without giving him a hearing about what has been already done against..........were also declared and it was ordered that accounts be taken. the suit was adjourned for making a final decree to 15-2-1952.3. on 4-4-1952 defendant 3 lalchand moved an application saying that the plaintiff had sued him as a minor and given his age as 12 years but this was incorrect and that he was a major on the date of the institution of the suit. according to him, he was born on 1-6-1932 and, therefore, on 20-7-1950 when the suit was instituted he had completed 18 years. it was prayed that since he was impleaded as a minor in spite of being a major, he could not be considered to be party to the suit and, therefore, the preliminary decree be set aside, he be treated as a major and the proceedings be started afresh.it was also pointed out by him that no notice regarding the appointment.....
Judgment:

Dave, J.

1. This is an application in revision under Section 115, Civil P. C., against the order of the Civil Judge, Sirohi, dated 23-8-1952.

2. The facts giving rise to it are that the petitioner Jawanmal brought a suit against seven defendants for dissolution of partnership and rendition of accounts. Defendant 3 Lalchand was described as a minor and his eldest brother Kantilal, defendant 1, was shown as his guardian in the plaint. The trial Court passed a preliminary decree on 12-1-1952 against the defendants declaring that partnership had come to an end on Kartik Vadi 15, Smt. 2003, Proportionate shares of the parties in the partnership were also declared and it was ordered that accounts be taken. The suit was adjourned for making a final decree to 15-2-1952.

3. On 4-4-1952 defendant 3 Lalchand moved an application saying that the plaintiff had sued him as a minor and given his age as 12 years but this was incorrect and that he was a major on the date of the institution of the suit. According to him, he was born on 1-6-1932 and, therefore, on 20-7-1950 when the suit was instituted he had completed 18 years. It was prayed that since he was impleaded as a minor in spite of being a major, he could not be considered to be party to the suit and, therefore, the preliminary decree be set aside, he be treated as a major and the proceedings be started afresh.

It was also pointed out by him that no notice regarding the appointment of his guardian was given to him according to the provisions of Order 32, Rule 3 (4), C. P. C., that he had, therefore, no knowledge about the institution of the suit, that he came to know of it at a very late stage when a talk about a compromise between the plaintiff and defendants 1 and 2 was going on, and that even if he were a minor, the proceedings against him were vitiated on account of the said error.

4. The plaintiff opposed this application and asserted that defendant 3 was a minor. It was also urged that his application was not maintainable and the trial Court had no jurisdiction to enquire into the validity of the preliminary decree which it had passed. The trial Court dismissed this objection and framed the following four issues for its determination. It is against this order dated 23-8-1952 that the plaintiff has come here in revision. The issues were :

'(1) Whether the defendant 3 had attained majority at the time of the institution of the suit?

(2) If so, what would be its effect on the preliminary decree passed in the suit?

(3) Was there no properly appointed guardian of defendant 3 in this suit and was no notice under Order 32, Rule 3 (4) given to him? If so, what would be its consequence?

(4) Was defendant 3 aware of the institution and the progress of the suit without objection and is he, therefore, estopped from questioning the validity of the proceedings?'

5. A preliminary objection about the maintainability of the revision petition was raised by learned advocate for the opposite party on the basis of the decisions of this Court in -- 'Pyarchand v. Dungar Singh', AIR 1953 Raj 90 (A) and --'Swarupnarain v. Gopinath', AIR 1953 Raj 137 (PB) (B). It may be pointed out that no appeal lies to this Court against interlocutory order which the trial Court has passed, nor can a ground be taken against this order even under Section 105, C. P. C. in the appeal from the decree that may be finally passed. The decisions of this Court referred above, therefore, are not applicable to this case. Learned advocate for the opposite party also realised this position and since he did not press the matter further, it is not necessary to dilate on this point.

6. The only point urged by the applicant's learned advocate is that there is a great sanctity attached to the preliminary decree passed by the Court concerned. If the party against whom the preliminary decree is passed wants to challenge it, it can do so either by going in appeal to the appellate Court, or if the party does not want to go in appeal and if it wants to move the same Court it can do so by filing a review petition. If the party fails to appeal against the preliminary decree in time, it cannot question its correctness in an appeal from the final decree.

It is contended that the preliminary decree can, thus, be set aside only according to the specific provisions of the Code of Civil Procedure and that when even an appellate court cannot interfere with it in an appeal from the final decree, the trial Court is much less empowered to examine its validity after it is passed except by way of review. According to the applicant's learned advocate there is no jurisdiction left in the trial Court to examine its own preliminary decree on a mere application and that the trial Court is, therefore, going to exercise jurisdiction which is not vested in it by proceeding to determine the issues mentioned above. It was further urged that the proper and only course left to the applicant now was to file a separate suit for cancellation of the decree. In support of his argument he has referred to -- 'Ghanshyam. Das v. Mt. Hardei', AIR 1918 Oudh 257 CO; -- 'Sakal Singh v. Chanderdip Lal', AIR 1919 Pat 10 (D) & -- 'Chettyar R. M. A. R. M. Firm v. Maung Shwe Hmun', AIR 1938 Rang 468 (E).

7. Learned advocate for the opposite party has urged in reply that his application dated 4-4-1952 in the trial Court should be deemed to have been made under Section 151, C. P. C, although that section is not specifically mentioned therein and that under the said section the trial Court had inherent jurisdiction to make an enquiry whether it had passed its preliminary decree against a person who was not on the record.

8. The main question for our determination, therefore, is whether the trial Court has jurisdiction under Section 151, Civil P. C., to enquire into an allegation that the defendant who was shown as a minor at the time of the institution of the suit and against whom a preliminary decree has been passed, was really not a minor but a major at that time and, therefore, the preliminary decree passed against him is not binding on him.

9. The applicant's learned advocate has laid great stress on Section 97, Civil P. C., and argued that the Code has given so much sanctity to a preliminary decree that in case a party aggrieved thereby does not appeal from the same it is precluded from disputing its correctness in an appeal which may be preferred from the final decree. It is urged that once a preliminary decree is passed, court's function to adjudicate upon the matter or matters decided thereby comes to a close and when even an appellate Court cannot interfere with that adjudication without an appeal from that decree, there is still less power left in the trial Court to make any change therein. Besides the three cases referred to above, he has also cited two more cases -- 'Ram Narain v. Ram Das', AIR 1929 All 65 (F) and -- 'Kalloo v. Niadar Singh', AIR 1929 All 252 (G) in support of his argument.

10. In the first case of 'Ghanshyam Das v. Mt. Hardei (C)', it was held that:

'If the defendant is of full age at the time that he is sued, but is described in the plaint as a minor, and a guardian 'ad litem' is appointed for him, he is not properly represented in the suit by such guardian.'

11. In the next case of 'Sakal Singh (D)' also it was held that a major defendant who is described as a minor cannot be treated as a party to the suit and is not bound by the decree passed in the suit.

12. So also in the case of 'Chettyar Firm v. Maung Shwe Hmun (E)' it was held that:

'Where persons to be sued are majors, a suit brought without their knowledge against them on the footing that they are minors is wrong, and the guardian 'ad litem' appointed to represent them has no legal standing to act for them in the suit and his admission of liability is not binding on them.'

13. These cases in fact support the contention of the opposite party that being a major at the date of the suit, the decree passed against him as a minor was not binding upon him, and that it may, therefore, be set aside and, he should be impleaded as a party without a guardian if any relief is sought against him. The applicant's learned advocate has referred to these cases in order to show that in all of them the persons who were treated as minors at the date of the suit but who claimed to be major at that time had brought separate suite to get the decree set aside and that the proper course for the opposite party was also to take recourse to a separate suit and, not by way of an application under Section 151, C. P. C.

It is no doubt true that in all the three cases, cited above, the aggrieved party had brought a separate suit for setting aside the decree but in none of these cases there is any remark to show that the same remedy cannot be given by the original Court on an application under Section 151, C. P. C. It may be further pointed out that in the above cases, the decrees which were sought to be set aside were final decrees. The Original Courts had, therefore, become 'functus officio' long before the suit for cancellation of the decrees was brought and, therefore, the question of discussing their powers under Section 151, C. P. C., did not arise. These cases, therefore, do not help the applicant.

14. In the fourth case of 'Ram Narain v. Ram Das (F)' it was held that a Court cannot at the time of passing the final decree go behind its own preliminary decree where it has become final by not being appealed against.

15. In the last case of 'Kalloo v. Niadar Singh (G)' also it was similarly held that at the time of the passing of the final decree the Court has no power to go behind the preliminary decree if the rights and liabilities of the parties have been determined.

16. These two cases apparently seem to support the argument of the applicant's learned advocate but these remarks were made in different circumstances and they are easily distinguishable from the present case. It may be pointed out that in both the cases the parties which wanted the trial Court to set aside the preliminary decree were properly represented at the time of the institution of the suit and before the decree was passed. We also think that in a case in which the parties are properly represented and a preliminary decree is passed, the Court cannot go behind that decree and revise its adjudication on the points which were already decided by the Court. The powers under Section 151, C. P. C., are not to be lightly used by any Court but where in a case like the present one, it is pointed out to the Court by a certain party that the preliminary decree is an absolute nullity against him, we think that the Court is not debarred from enquiring into the matter before proceeding to give a final decree ignoring all such objections.

In the present case what the opposite party has stated in his application to the trial Court is that he was wrongly described as a minor while he was a major, that even as a minor a notice under Order 32, Rule 3 (4) should have been delivered to him, that if such a notice were received by him, he would have brought to the notice of the Court that he was not a minor, that as soon as he came to know that a preliminary decree was passed against him he had moved the Court; he is in fact not a party to the suit since the so called guardian has no authority to represent him, that a decree against him Has been obtained from the Court by misrepresenting the facts, that the Court should not proceed to pass a final decree, that before proceeding to pass the final decree it should set aside the preliminary decree against him, and that if the opposite party wants to seek any relief against him he should be permitted to fight out the case 'ab initio'. In our opinion it would be certainly improper for the Court to refuse to enquire into such application and proceed to pass the final decree.

17. In the case of --'Debi Bakhsh v. Habib Shah', 35 All 331 (PC) (H) the plaintiff's suit was dismissed in default for non-appearance. An application was later moved by the heir and legal representative of the original plaintiff that on the date of the dismissal of the suit his father (the plaintiff) had died and he was engaged in the performance of the necessary funeral ceremonies and therefore the suit may be restored. The trial Court allowed the application but its order was reversed by the Judicial Commissioner of Oudh. On appeal it was observed by their Lordships of the Privy Council that:

'By the Code of Civil Procedure, Section 151, it is provided that 'nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of the Court'. In their Lordships' opinion such abuse has occurred by the course adopted in the Court of the Judicial Commissioner. Quite apart from Section 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made. But Section 151 could never be invoked in a case clearer than the present, and their Lordships are at a loss to understand why, apart from points of procedure and otherwise, it was not taken advantage of.'

18. In the case of -- 'Narayan Shaligram v. Mitharam', AIR 1934 Nag 234 (I), the plaintiff had filed two separate suits against the defendant -- one for possession of certain property and the other for the mesne profits of that property. The trial Court passed a decree for possession of the property and also for mesne profits in the first case and dismissed the second case saying that it had become superfluous. On appeal by the defendant in the first suit, the decree for mesne profits was set aside on the ground that in that suit he had only claimed possession of the property. Thereupon the plaintiff applied to the Court of the first instance to set aside the decree in the second suit and proceed with its hearing. The trial Court accordingly proceeded with the suit. The defendant filed a revision petition and it was contended by him that the trial Court had no jurisdiction to set aside its previous decree. It was, however, held that the Court did possess power under Section 151, C. P. C., to set aside that decree.

19. It is true that the error on account of which the decree was set aside in these cases was committed by the Court itself and not at the instance of any party, but it does meet the argument of the applicant's learned advocate that the preliminary decree is not revocable by the trial Court. On the other hand, it lays down that it can be set aside under certain circumstances.

20. In the case of -- 'Md. Raza v. Ram Saroop', AIR, 1929 Oudh 385 (PB) (J) the plaintiff had brought a suit on the basis of a mortgage-deed against certain defendants. A decree for sale of the mortgaged property was passed on the basis of a compromise between the parties. Before the final decree was passed, an application was presented by one of the defendants saying that he was no party to the compromise and that his name was wrongly entered in the preliminary decree. The trial Court dismissed that application on the ground that it was not maintainable under Section 151 or 152, C. P. C. The applicant thereupon went in revision to the Chief Court of Oudh.

The Division Bench referred the matter to aFull Bench and one of the points which werereferred was in the following language:

'Is it open to such a party in the suit to invokethe inherent power of the Court to get thejudgment and the decree amended under Sections 151,152 and 153, C. P. C., so that his name mightbe removed from the decree, after the periodof limitation prescribed for appeal or review hasexpired and the judgment and the decree havethus, become final?'

The learned Judges constituting the Full Bench replied this question in the affirmative and it was held that it was open to a party in a suit to invoke the inherent power of the Court to get the judgment and decree amended under those sections.

21. Instances are not wanting to show that in certain cases High Courts have held that if even after a final decree, it is brought to the notice of the Court that the decree was obtained by fraud or misrepresentation, i.e., by an abuse of the process of the Court, the Court has jurisdiction, to set aside such decree under its inherent powers under Section 151, C. P. C. In the present case we are not concerned with the final decree nor is it alleged that there was any fraud knowingly committed on the Court by the plaintiff and, therefore, we need not express any opinion as to whether even a final decree can be set aside under section 151, I. P. C.

But in the case of a preliminary decree it is clear that the Court does not become functus officio, but the suit still continues in that Court and if before a final decree is passed it is brought to the notice of that Court that the preliminary decree was obtained by the plaintiff against a person who is not on the record, we think that it is certainly open to that Court to go into the question and amend its decree. We may, however, point out that in a case like the present' where there are several defendants and the objection is raised, only by one of them, the Court, if it allows the application, should amend the decree only against that particular defendant. But if the interests of the defendants are inseparable and if it is necessary to set aside the decree against all the defendants, it may proceed to do so even to that extent.

The inherent powers of the Court under Section 151 can be exercised both for the ends of justice and to prevent the abuse of the process of the Court. In a case like the present one, it would, in our opinion, be grave injustice if a Court refuses to hear a person who comes to it and complains that the Court has proceeded to pass an ex parte preliminary decree against him even though he is not on the record, and still proceeds to pass a final decree against him without giving him a hearing about what has been already done against him.

22. We, therefore, see no reason to interfere with the order of the trial Court. The application is dismissed with costs.


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