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Gadikota Siva Narayana Reddi Vs. Badepalli Nagasubbamma and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 774 of 1950
Judge
Reported inAIR1952Mad600; (1951)2MLJ418
ActsCode of Civil Procedure (CPC) , 1908 - Order 9, Rule 13 - Order 32, Rule 3
AppellantGadikota Siva Narayana Reddi
RespondentBadepalli Nagasubbamma and anr.
Advocates:K. Umamaheswaram, Adv.
DispositionPetition dismissed
Excerpt:
- - devanai ammal',(1947)2mlj566 .that ruling will not apply to the facts of this case as there the non-appearance of the next friend was 'bona fide' and not due to culpable negligence, as here, and the minors were plaintiffs suing for a declaration that a court sale was not binding on them, and not defendants in possession of properties claimed by another man like this plaintiff, to be his. nor will it act soullessly like an earthquake hitting saint and sinner alike. 'impersonal' means in law 'without attachment or partiality to either side' and does not mean 'soullessly and unintelligently like a stone......for a declaration of his title to 9 acres of land and recovery of possession of them from these minor girls represented by some guardian on record who absented himself on the date of trial with the consequence that an 'ex parte' decree was passed against these minor girls. the lower court removed the negligent guardian and appointed another guardian by name bayya reddi for them. then, oil an application, by this new guardian, bayya reddi, the maternal uncle of the minor girls, the lower court set aside the 'ex parte' decree 'on terms' as there was 'some sufficient cause' for the minors' absence at the time of the hearing resulting in the 'ex parte' decree against them, namely the negligence of the previous guardian. hence this petition by the plaintiff.2. as the minors cannot appear.....
Judgment:

Panchapakesa Ayyar, J.

1. I have perused the entire records and heard the learned counsel for the plaintiff-petitioner. Nobody appears for the respondents defendants, two minor girls aged 15 and 13. The plaintiff had brought O. S. No. 229 of 1948 against these minors for a declaration of his title to 9 acres of land and recovery of possession of them from these minor girls represented by some guardian on record who absented himself on the date of trial with the consequence that an 'ex parte' decree was passed against these minor girls. The lower Court removed the negligent guardian and appointed another guardian by name Bayya Reddi for them. Then, oil an application, by this new guardian, Bayya Reddi, the maternal uncle of the minor girls, the lower Court set aside the 'ex parte' decree 'on terms' as there was 'some sufficient cause' for the minors' absence at the time of the hearing resulting in the 'ex parte' decree against them, namely the negligence of the previous guardian. Hence this petition by the plaintiff.

2. As the minors cannot appear in Court themselves, I cannot agree with Mr. Umamaheswaram that their guardian's negligence to appear and defend on their behalf at the trial is not 'sufficient cause' under Order 9 Rule 13, Civil P. C. The contention that the law should make no discrimination in favour of minors is not acceptable, it has, does, and will go on making suitable provisions for protecting the Gods, Trusts, Charities, widows, lunatics and minors, and it is no use calling it 'discrimination'. Nothing in the Constitution of India or Bharat hits at it.

3. It was then urged that the lower Court did not take evidence before holding the previous guardian to be guilty of negligence, and that the matter might be remanded to the lower Court, for taking evidence and giving a fresh uncling. I see no force in this. Some things speak for themselves. The former guardian was removed by the lower Court 'for negligence', and a fresh guardian was appointed. So there was an enquiry and a finding. When a man's nose has been proved to have been cut already, there is no need to verify whether his nose is uncut!

4. Mr Umamaheswaram then relied on the ruling in 'VAITHILINGA NAIDU v. DEVANAI AMMAL', : (1947)2MLJ566 . That ruling will not apply to the facts of this case as there the non-appearance of the next friend was 'bona fide' and not due to culpable negligence, as here, and the minors were plaintiffs suing for a declaration that a Court sale was not binding on them, and not defendants in possession of properties claimed by another man like this plaintiff, to be his.

5. It was finally urged that the minors could, after they attained majority, agitate the matter again and so the lower Court should not have set aside the 'ex parte' decree even on terms. I cannot agree. Why should the minors be denied their present remedy and relegated to a future remedy? Besides, they might, on being deprived of the suit property by virtue of the 'ex parte' decree and its execution even die of starvation before they attain majority. The law will not compel any person to adopt only one or two remedies, open to him. Nor will it act soullessly like an earthquake hitting saint and sinner alike. 'Impersonal' means in law 'without attachment or partiality to either side' and does not mean 'soullessly and unintelligently like a stone.'

6 This petition deserves to be and is hereby dismissed.


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