L.N. Chhangani, J.
1. This is application under Articles 226 and 227 of the Constitution by the petitioner Shri Ram Gopal-plaintiff praying to set aside the order of the Munsiff Gangapur, dated 9/1/68. By this order, the Munisif Gangapur allowed the revision application filed by the defendant Surajmal and his minor son Rata and set aside the decree passed by the Nyaya Panchayat, Nimbehera and dismissed the plaintiff petitioners suit.
2 The petitioner Shri Ram Gopal filed a suit for the recovery of Rs. 241/- in the Nyay Panchayat. Nimbahera Jatan, on 26/8/66. The plaintiff's case was that there were dealings in cash and kind between the petitioner and the non-petitioner 'Shri Surajmal and that the non-petitioner Surajmal executed a khata in favour of the petitioner on Jeth bud 10 Samvat 2010 for an amount of Rs. 124/--. The plaintiff further claimed an amount of Rs 72/-from the non petitioner on account of the price of ghee. Adding an amount of Rs. 71/- on account of interest and giving credit for an amount of Rs. 26/- the plaintiff claimed an amount of Rs. 241/- from Shri Surajmal. Rata is the son of Shri Surajmal and alleging that he had been living with the defendant Shri Surajmal, the plaintiff treated him also liable for the amount due from Shri Surajmal. The suit was thus filed by the plaintiff against both the defendants for the recovery of Rs. 241/-. Shri Surajmal appeared in the Nyay Panchayat and alleged repayment. Rata did not appear at all The Nyay Panchayat by its judgment and decree dated 5/12/66 passed a decree for Rs. 220/- in favour of the petitioner Shri Ram Gopal, The Panchayat Court thought it proper to reduce the amount of interest by Rs. 21/-, Shri Surajmal filed a revision in the court of Munsif Gangapur on behalf of himself and his minor son challenging the decree of the Nyaya Panchayat. During of the revision application, it was alleged that the defendant Rata was minor. A medical certificate in support of the allegation about the minority of Rata was also produced. The Munsif Gangapur holding that the defendant Rata was minor, accepted the revision and set aside the decree of the Nyaya Panchayat. Nimbahera and dismissed the plaintiff's suit. The plaintiff has filed the present writ application.
3. It was contended by the petitioner that Rata's name was mentioned in the khata but he was not a co-promisor. Even if he was a co-promisor, the non-petitioner Shri Surajmal was jointly and severally liable to the plaintiff under the khata and, therefore, be could have filed a suit against Shri Surajmal alone and recovered the amount due from him. On this premises it was contended that the Munsif Gangapur while deciding the revision application could not have dismissed the suit against Shri Surajmal only one the ground of the minority of the co-defendant Rata. The petitioner did not press for the maintenance of the decree against Rata and accepted the decision of the Munsif Gangapur dismissing the suit against Rata. He, however, contends that the Munsif had no jurisdiction to set aside the decree passed against Shri Surajmal. At any rate, the Munsif committed an error of law in dismissing the suit against Shri Surajmal.
4. The counsel for Shri Surajmal, however, supports the order of the Munsif on the basis of the provisions of Section 39 clause (a) of the Rajasthan Panchayat Act, 1953. The proviso relevant for our purposes reads as follows:
Provided that no Nyaya Panchayat shall take congnizance of any suit--
(a) by or against a minor or a person of unsound mind.
The part of the proviso relied upon by the non-petitioner no-doubt clearly lays down that the Nyaya Panchayat cannot take cognizance of a suit by or against a minor or a person of unsound mind. The cognizance as to a suit by Nyaya Panchayat against minor Rata was. therefore, against law and wholly ineffective. Consequently, the decree against minor was not valid and it was rightly setaside by the Munsif Gangapur.
5 The controversy requiring determination is about the regularity and legality of the proceedings and the decree against the major defendant Shri Surajmal. On a careful consideration of the relevant provision relied upon by the non-petitioner, I have been parsuaded to take a view that the irregularity or illegality in taking cognizance against a minor need not and does not affect the validity of the procedings against the major defendant. Clause (1) does not prohibit cognizance of a case in which a minor is a party. It merely prohibits taking of cognizance against a minor or a person of unsound mind. The major defendant Shri Surajmal did not protest before the Nyaya Panchayat against the cognizance of the suit taken against him nor did he question the cognizance on the ground of the minority of the co-defendant Rata. Rata himself did not appear. In my considered opinion, the Nyaya Panchayat's cognizance of the suit against a major defendent and the eventual decree passed by it could not have been assailed by Shri Surajmal in the court of Munsif Gangapur, and the Munsif Gangapur committed an apparent and serious error of law in accepting the revision and setting aside the decree in favour of the petitioner and dismissing his suit. The petitioner in this Court had not pressed for the maintenance of the decree against the defendant Rata nor does he intend V, to take any further proceedings against him. He merely presses for the restoration of the decree of the Nyaya Panchayat in his favour against Surajmal and no exception can be taken to this prayer of the petitioner.
6. The petition is allowed. The order of the Munsif Gangapur setting aside the decree against the non-petitioner Shri Surajmal and dismissing his entire suit, is set aside. The order of the Munsif dismissing the suit against Rata is maintained.