Skip to content


Haji Muhammad Shadak Koyi Sahib Vs. Burra Venkata Komaraju and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1940Mad810; (1940)2MLJ433
AppellantHaji Muhammad Shadak Koyi Sahib
RespondentBurra Venkata Komaraju and ors.
Cases ReferredBrij Raj v. Ram Surup I.L.R.
Excerpt:
.....of appeal in this court nor during the arguments at the hearing of the appeal was it stated that gross negligence by itself would not be sufficient in the absence of fraud and collusion; 573 was decided by the vice-chancellor malins, it has been understood to be well settled law in england that such an action would lie. it is enough for our purposes to say that leave to appeal could not be given in a matter like this for the simple reason that leave is asked for for the purpose of raising for the first time a question which was not raised at any time while the litigation was pending in this country; the resort to the provisions which permit a party to apply for leave to appeal for a purpose like this, namely, for raising a point for the first time after the whole case has been disposed..........of both the courts being concurrent on the main question in the suit, namely, whether there was gross negligence on the part of the court guardian appointed to defend the suit in which a decree had been passed against the minor, the present litigation being one to have that decree set aside as against the minor. the entire litigation proceeded in the trial court as well as in this court on the basis that gross negligence, if proved, would be sufficient to entitle the plaintiff to have the earlier decree set aside, and neither in the grounds of appeal in this court nor during the arguments at the hearing of the appeal was it stated that gross negligence by itself would not be sufficient in the absence of fraud and collusion; but it is this point and this point alone that is sought to.....
Judgment:

Pandrang Row, J.

1. This is an application for leave to appeal to His Majesty in Council from the decree of this High Court made in Appeal No. 330 of 1936 on the 14th February, 1939. That decree merely confirmed the decree of the trial Court, the finding of both the Courts being concurrent on the main question in the suit, namely, whether there was gross negligence on the part of the Court guardian appointed to defend the suit in which a decree had been passed against the minor, the present litigation being one to have that decree set aside as against the minor. The entire litigation proceeded in the trial Court as well as in this Court on the basis that gross negligence, if proved, would be sufficient to entitle the plaintiff to have the earlier decree set aside, and neither in the grounds of appeal in this Court nor during the arguments at the hearing of the appeal was it stated that gross negligence by itself would not be sufficient in the absence of fraud and collusion; But it is this point and this point alone that is sought to be raised in the present application for leave to appeal. The petitioner wants an opportunity of having this question settled by the highest judicial tribunal and it would appear that they have been emboldened to do that by reason of a Full Bench decision of the Bombay High Court reported in Krishna Doss v. Vithoba I.L.R. (1939) Bom. 340, which appears to have been reported only after the High Court's judgment was pronounced. That however is a detail which need not affect our decision in this matter. Even in that case it is pointed out that there is a preponderance of authority among the High Court Judges in India in favour of the view that a minor can challenge a decree passed against him on the ground of the gross negligence of his guardian ad litem. This majority view appears to have been dissented from by the Full Bench of the Bombay High Court on the ground that the majority view was based mainly on the consideration that such an action would lie under the English law, and the Full Bench of the Bombay High Court was of opinion that under the English law itself no such action would lie. We find however that apart from the dictum in Gregory v. Molesworth (1747) 26 E.R. 1160 of Lord Hardwicke which is quoted in some of the reported cases in India, at least since 1874 when In re Hoghton (1874) L.R. 18 Eq. 573 was decided by the Vice-Chancellor Malins, it has been understood to be well settled law in England that such an action would lie. It is sufficient to refer in this connection to the passages quoted from Macpherson on Infants and Simpson on the Law of Infants in Brij Raj v. Ram Surup I.L.R. (1925) All. 44 and also to the passage from Halsbury's Laws of England, Vol. 17, page 138 on the same page. We find also in the later edition, that is, the Hailsham edition of the Laws of England, the same proposition of law laid down; that is to say, that an infant is as much bound as an 'adult by a judgment unless there has been fraud or gross negligence on the part of his next friend. We feel therefore some hesitation in expressing the view that under the English law an action would not lie in the case of gross negligence only of the guardian. We are unable to accept the position as being one in which any real doubt remains about the maintainability of a suit of this kind. We however do not base our final decision which is to dismiss the petition on this ground. It is enough for our purposes to say that leave to appeal could not be given in a matter like this for the simple reason that leave is asked for for the purpose of raising for the first time a question which was not raised at any time while the litigation was pending in this country; that is to say, either in the trial Court or in this Court. The resort to the provisions which permit a party to apply for leave to appeal for a purpose like this, namely, for raising a point for the first time after the whole case has been disposed of, would be, in our opinion, an abuse which should not be encouraged. It might also be mentioned that if this new point had been raised earlier, the plaintiffs would have had an opportunity of meeting this point by alleging as an additional ground of claim actual fraud and collusion.

2. In the circumstances we feel that there is no other alternative than to refuse leave to appeal. The petition is therefore dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //