1. O.S. No. 63 of 1930 on the file of the Sub-Judge of Ellore was a suit upon a mortgage. The mortgagors were defendants 1 to 5 of whom defendants 2 to 5 are brothers, and defendant 1 their mother. Two other defendants were impleaded, defendants 6 and 7 the minor sons of defendant 2, and their mother was proposed as their guardian. Of these defendants, defendants 1 to 3 filed a written statement but did not further contest the plaintiff's claim; defendants 4 and 5 and the mother of defendants 6 and 7 remained ex parte. A decree was accordingly passed against all the defendants and in due course two applications were filed under Order 9, Rule 13 to set this decree aside. One was filed by defendant 4 and the other by defendants 6 and 7, appearing this time by their maternal grandmother. Both applications were heard together by the learned Sub-Judge and dismissed, and against this order of dismissal the two appeals now under consideration have been filed.
2. Of these two appeals C.M.A. No. 475 which is filed by defendant 4 gives rise to no difficulty. It appears that defendant 4 was never served in person, but was served three times by affixture. On the third occasion service was also sent to his address by registered post and this registered letter was refused. In the affidavit supporting his application defendant 4 states that he did not know of the suit until after the passing of the decree, but, as is not uncommon in such affidavits, he does not explain in any detail how he happened to acquire his knowledge. When his application came to be heard the defendant 4 gave no evidence. There is nothing therefore to show either that defendant 4 would not in the ordinary course of events have been informed of the suit by the other defendants, or to suggest that he did not actually refuse the registered letter. In these circumstances the learned Sub-Judge holds that defendant 4 was aware of the suit long before the decree was passed. I see no reason at all to differ from this finding. Defendant 4 must be deemed to have had at least constructive notice of the date of hearing. He was not present on that date and of course, has alleged no facts other than his want of knowledge of the suit, for his absence. His appeal must be dismissed with costs.
3. The other appeal (C.M.A. No. 474) raises a very interesting point of law. It is this - what is the effect with reference to Order 9, Rule 13 or Rule 9 of the failure of a guardian or next friend of a minor party in a suit to appear? Three points of view are possible. The first is what may be called the complete identification of the minor with his guardian. If that guardian does not appear and cannot satisfy the Court that he or she was prevented from appearing by sufficient cause then no application under Order 9, Rule 13 can be successful and the remedy of the minor, if he has any grievance against his guardian, is by separate suit. This is the view adopted by the learned Sub-Judge.
4. The second view is that the mere fact of the non-appearance of the guardian is sufficient proof that the minor party, who is precluded from appearing in person or from choosing his own guardian, has been prevented by sufficient cause from appearing. This is the view which has been taken by the learned Chief Justice sitting alone in a recent case reported in Venkataratnam v. Nagappa (1934) 67 M.L.J. 387.
5. The third view is intermediate between these two. It finds expression in a case decided by my learned brother, also sitting alone, and reported in Kathaszvamy Chettiar v. Rama-chandran I.L.R.(1934) 57 Mad. 1069 : It is there held that ' the default of a guardian who wrongfully allows a claim against a minor defendant to be decreed ex parte constitutes a sufficient cause for the non-appearance of the minor within the terms of Order 9, Rule 13, Civil Procedure Code.'
6. The first of these views is not seriously pressed before us. Neither the learned Sub-Judge nor the learned Advacate for the respondent has referred to any authority in support of it, and it is in direct conflict with the principle that the Court is under a duty to show a special solicitude for the interests of minor parties in suits which come before it.
7. In the case, Venkataratnam v. Nagappa (1934) 67 M.L.J. 387 which has been quoted as authority for the second view, the minor parties were plaintiffs whose next friend (their mother) failed to prosecute their suit, and the suit was dismissed on a day on which the defendants also were not ready to go on with it. An application was then made for the restoration of the suit on the plea that the next friend was prevented from appearing by illness. This plea was rejected by the District Munsif, and the application in consequence dismissed. In dealing with this order in revision the learned Chief Justice begins by saying that the District Munsif had not addressed himself to the question whether the interests of the minors could be allowed to be prejudiced by the absence of the mother. Then three possible explanations for the mother's failure to appear are considered. She may have been ill and may have been negligent, she may have been deliberately acting adversely to the minors' interests. In all these cases it is pointed out that the minors' interests should not be allowed to be prejudiced. Then follows the general conclusion, expressed in these words:
It appears to me, therefore, that the position in justice is that, if there are minor plaintiffs and defendants who are represented as they must be by a next friend and the next friend is absent, through whatever cause it may be at the trial, then that fact alone is a sufficient reason for setting aside an ex parte decree passed against minor defendants or for setting aside an order of dismissal of the suit in the case of minor plaintiffs. I am supported in this view by a decision of the Calcutta High Court in Kesho Prashad v. Hirday Narain (1880) 6 C.L.R. 69 and by a decision of Curgenven, J., in Kathaswamy Chettiar v. Ramachandran : AIR1934Mad428 .
8. If I may say so with very great respect it seems to me that the general conclusion does not necessarily follow from the reasoning of the judgment, and that the two authorities quoted do not go so far as to support this conclusion expressed as it is in its widest form - and without any reservation. There is a fourth possible explanation for non-appearance which has not been considered; an explanation which no doubt would very rarely apply in the case of the next friend of a plaintiff whose change of attitude is itself prima facie indication of the neglect of the plaintiff's interests, but may well apply to the guardian of a minor defendant. It is this, that the minor defendant has no case to put forward, and that his guardian realises this and exercising his judgment honestly and deliberately and in the interests of the minor defendant decides that no good purpose can be served by putting in an appearance. In such circumstances it seems to me that the non-appearance of a guardian is not a ' sufficient cause ' within the meaning of Order 9, Rule 13. A party can be said to be 'prevented' from appearing only when he wishes to appear, and he wishes to appear only when he has some point of view to press upon the Court's attention. If he recognises the justice of the plaintiff's claim and is content to have a decree passed against him and for that reason fails to appear he is in no sense prevented from appearing.
9. Kesho Prasad v. Hirday Narain (1880) 6 C.L.R. 69 is a case decided in Calcutta in 1880. The crucial passage in that judgment is quoted by my learned brother in Kathaswamy Chettiar v. Ramachandran : AIR1934Mad428 . It is there pointed that the guardian's default was a ' neglect of duty ' and that he failed to take ' what was obviously a necessary step to protect the minors' interests.' And in Kathaswamy Chettiar v. Ramachandran : AIR1934Mad428 itself the same stress is laid upon the conduct of the guardian. The discussion which begins on page 1072 proceeds upon the finding of fact that the guardian had wrongfully allowed the claim to be decreed ex parte, and ends with that finding of fact again expressed in another form, that the first defendant had betrayed his trust as guardian.
10. With great respect I find myself in entire agreement with this decision of my learned brother in Kathaswamy Chettiar v. Raniachandran : AIR1934Mad428 and unable to extend the principle so far as it has been extended in Venkataratnam v. Nagappa (1934) 67 M.L.J. 387. It seems also to me that if the mere absence of a guardian without any enquiry into the reasons for that absence is to be accepted as sufficient cause for setting aside an ex parte decree, the door is opened wide for fraudulent conduct on the part of a group of defendants who desire unduly to protract the trial of a suit against them.
11. If this view of the law is correct it follows that the important matter for consideration in this appeal is the attitude and conduct of the appellants' mother. On this matter the learned Sub-Judge has given no decision, having disposed of the appellants' application on the sole ground that they had misconceived their remedy. We have accordingly been requested in the alternative by the learned Advocate for the appellants to remand the application for disposal of its merits. I do not think any such remand is required in the interests of justice.
12. In the first place though this application has been dismissed on a point of law it has not been asserted that any evidence, regarding the mother's conduct was either offered or rejected. The notespaper shows that there was no preliminary order rejecting this particular application. Both applications were heard together on 4th April, 1932 and the order in both was reserved and eventually pronounced on the 16th. The failure on the part of the Appellants to tender any evidence is therefore a matter which I cannot ignore.
13. In the second place the affidavit of the maternal grandmother of the appellants, which is the foundation of the case for setting aside the ex parte decree, is a document hopelessly inadequate for its purpose. The reasons for the application are there stated as follows:
Defendants six and seven have material contentions to urge. They are not under the protection of their mother. Their mother acted with gross negligence without urging contentions on their behalf.
14. There is no clear statement that the mother is living apart from her husband and children - which is not asserted before us to be a fact. There is no hint of any reason for her negligence. There is no indication of what those material contentions are which the minors have been prevented from urging - still less any attempt to show that those contentions differ in any way from those put forward and abandoned by defendants 1 to 3. In short no concrete fact is alleged from which any inference can fairly be drawn that the failure of the mother to appear has in any way prejudiced the interests of the appellants. In these circumstances I consider that there are no good reasons for remanding this application and would dismiss this appeal also with costs.
15. I agree.