1. The plaintiffs sued in this case to set aside the decree in O.S. No. 274 of 1917 on the file of the Principal Distinct Munsif's Court, Guntur, obtaining against them when they were minors. They sued on the ground that they were not properly represented by the guardian in the suit and that the said guardian was guilty of gross negligence.
2. There is no doubt that they were minors at the time of the suit, and both their father and mother were dead. It is also clear that they had no certificated guardian and no natural guardian. It appears that the Plaintiff in O.S. No. 274 of 1917 first applied to the Court to have one K. Ramiah appointed as guardian ad litem and notice was sent to him but he refused to act. The plaintiff then applied for a Court guardian and the Head Clerk of the Court was appointed. The plain-tiffs here in this case urged that the appointment of the Court guardian was illegal because no notice of the application to appoint a Court guardian was sent, as it should have been sent, under Order 32, Rule 3 (5) to the person in whose care the minors were. The defence urged that, since plaintiffs were in the case of K. Ramiah who already had notice of the application to appoint himself as the guardian, it was not necessary to send a fresh notice to him. Plaintiffs rejoined that K. Ramiah was not the person in whose care then they were; that they were in the care of R. Seetharamaswami, that, even if they were in Ramiah's care, it was necessary to serve him with a notice again in order to comply with the Rules, so that he might have had an opportunity of objecting to the appointment of the Court guardian or of proposing some other person as guardian; and that at least under the rules the Court should and could not have been satisfied, without sending a fresh notice to him, that there was no person fit and willing to act as guardian, which is the only condition on which the appointment of a Court guardian can stand. See Order 32 Rule 4 (4).
3. The first Court found that the plaintiffs were not in the care of R. Seetharamaswami but it has not clearly found that they were in the care of K. Ramiah to whom notice under the rules did not go. Both the lower Courts have held that the mere omission to send such a notice is a sufficient ground in law for holding that the minors were not properly represented in the suit. I do not think that the law is so. The correct view, I think, is that no irregularity by way of an omission to send a notice as required by Order 32 R. (3) shall operate to render void the presumed representation of the minors in a suit, unless such an omission has in fact prejudiced their defence, and such prejudice is not a matter of assumption or presumption but of proof see Suresh Chunder Waru Choudhry v. Jugut Chunder Pal , Bhagwan Dayal v. Param Sukh Das ILR (1915) A 179 and in this Court the case reported in Nachiappa Chetti v. Chinniah Ambalan (1916) 4 LW 362 and particularly in Ramaswami Chetty v. Doraiswami : AIR1923Mad465 . The ratio decidendi in Maruthamalai v. Palani ILR (1912) M 535 is to the same effect. It is clear then that the lower Courts were not justified in setting aside the decree in O.S. No. 274 of 1917 without first considering the question whether in fact the minors had been prejudiced in their defence.
4. The answer to this question again will depend very much on the answer to the question whether the minors had a good defence which, by the negligence of the Court guardian, whose appointment followed on the breach of the rule, had not been put forward. In the present case it is clear that the Court guardian put forward no defence, did not file a written statement and did not supply the vakil for the minors with any material on which to cross examine the plaintiff's witnesses in that suit. So, the points to be settled are whether the minors had a good defence and whether the omission to obey the rules had the effect of shutting out that defence. These points are embodied, not as clearly as they might have been perhaps in issues II, III and IV framed by the first Court. The appellants argued that the plaintiffs, put forward no evidence on these issues, and therefore they must be found against them the onus lying on them; but, on my reading of the first Court's judgment, I am forced to the conclusion that the first Court refused to go into these issues, holding that its finding on the first issue was enough to dispose of the suit, and the lower appellate Court never touched on these points at all. I must hold therefore that these issues are still to be tried. I therefore reverse the decision of the lower appellate Court and direct the suit go back to the first Court and be reheard there on the other issues in the light of this judgment. Fresh evidence is of course admissible. Costs up to date will abide the result.