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Enuga Sundararama Reddi Vs. Bezwada Pattabhiramireddi (Dead) Add ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in42Ind.Cas.421
AppellantEnuga Sundararama Reddi
RespondentBezwada Pattabhiramireddi (Dead) Add ors.
Cases ReferredRambrichh Ram v. Tarak Tewari
Excerpt:
.....police act, 1859 [act no. 24/1859]. section 10 & tamil nadu special police subordinate service rules, rule 14(b), clause (iv) explanation (1); [a.p. shah,c.j., f.m. ibrajhim kalifulla & v. ramasubramanian, jj] rule 14(b),ci.(iv) explanation (1) providing that a person acquitted or discharged on benefit of doubt shall be treated as person involved in criminal case - validity being questioned - held, the impugned rule 14(b) ci.(iv) explanation (1) has been issued in exercise of the power conferred upon the government under the tamil nadu district police act, the criminal city police act and the proviso to article 309 of the constitution., the rule is not assailed on the ground of lack of competence. it is challenged only on the ground that it is violative of articles 14 and 16 of the..........the 1st defendant, the managing member of the defendants' family, was appointed guardian of the minor defendants nos. 3 and 4 on the 4th august 1911, and he executed a vakalat, to mr. chengayya to conduct the common defence on behalf of himself and of the minor defendants nos. 3 and 4. the 3rd defendant states in his affidavit that he attained majority about february 1912, and it may be taken as true. mr. chengayya, who was appointed his vakil when ho was a minor in august 1911, continued to represent him till the decree was passed in december 1912. the record was, however, not amended after february 1912 by describing the 3rd defendant as having become a major.2. on the 20th day of january 1913, the 3rd defendant presented the petition to the district court to set aside the decree as.....
Judgment:

Sadasiva Aiyar, J.

1. This is an appeal by the 3rd defendant in the suit against the order of the District Court refusing his application to set aside the decree passed against him. That application to set aside treated the decree as an ex parte decree so far as he was concerned. Turning to the decree itself, I find the wording is as follows:--'This suit coming on for hearing in the presence of Messrs. T. V. Venkatarama Aiyar and R. Subbarayudu, Vakils for the plaintiffs, and Mr. M. Chengayya, Vakil for defendants, this Court doth order and decree that plaintiffs do recover from the family properties of all the defendants Rs. 4,204-6-2 and from 1st defendant personally and from the family properties of all the defendants Rs. 1,459-0-6, etc.' Thus on the face of it, the decree was passed against all the four defendants, including the appellant (3rd defendant), in the presence of and after hearing their Vakil and it is, therefore, on its face not an ex parte decree against him. The suit was brought on a promissory note executed by or under the directions of the father of the 4th defendant. The 3rd defend-ant was a minor about seventeen years old when this suit was brought in July 1911. The decree was passed on the 2nd December 1912. The 1st defendant, the managing member of the defendants' family, was appointed guardian of the minor defendants Nos. 3 and 4 on the 4th August 1911, and he executed a vakalat, to Mr. Chengayya to conduct the common defence on behalf of himself and of the minor defendants Nos. 3 and 4. The 3rd defendant states in his affidavit that he attained majority about February 1912, and it may be taken as true. Mr. Chengayya, who was appointed his Vakil when ho was a minor in August 1911, continued to represent him till the decree was passed in December 1912. The record was, however, not amended after February 1912 by describing the 3rd defendant as having become a major.

2. On the 20th day of January 1913, the 3rd defendant presented the petition to the District Court to set aside the decree as against him, treating it as I said before as an ex-parte decree. The affidavit in support of this petition significantly omits to state that he was not aware of the proceedings which were taking place in the Court with himself as a party both before and after February 1912 (when he became a major). The first paragraph of the affidavit says: 'The plaintiff did not issue notice to me after I attained majority and did not bring me on record. I was unrepresented in the in after I attained majority. The decree, therefore, was ex parte so far as I am concerned.' Then paragraphs 2 to 9 of the affidavit attack the plaintiff's claim and the evidence let in by the plaintiff in the case. In fact, the grounds mentioned in the paragraphs 2 to 9 are exactly those which would be advanced (and which have been substantially advanced by the other defendants) in an appeal from the District Judge's decree. There is not a word in the affidavit to indicate that the other defendants Nos. 1, 2 and 4 were not contesting the suit properly or that they omitted to adduce any evidence for the common defence so as to prejudice the 3rd defendant. I here wish to emphasise what the 3rd defendant says in his affidavit that he was unrepresented in the suit only after he had attained majority. So far as representation before February 1912 is concerned, the affidavit clearly implies that he was properly represented. Treating this as an application to set aside an ex parte decree, i.e., as an application under Order IX, Rule 13, the application falls under Article 164 of the Limitation Act, and as the plaintiff in his counter-affidavit in the lower Court alleged that the appellant (3rd defendant) was aware all along of the proceedings in the suit, the time for the calculation of limitation begun on the date of the decree, which is also the date of the applicant's knowledge of the decree. Thirty days therefrom expired on the 1st January 1913, and the application presented on the 20th January 1913 was, therefore, clearly barred. The belated affidavit filed in this Court that the 3rd defendant got knowledge of the decree within thirty days before his application cannot be believed under the circumstances. On this short ground of limitation, this appeal can be at once dismissed, taking as correct the appellant's own presentment of his case as one arising under the law relating to the setting aside of an ex parte decree.

3. As, however, other aspects of the case involving other legal questions were strenuously argued, I shall shortly consider them also. I think there is much to be said in favour of the view that it was not an ex parte decree at all. A guardian for the suit has a right to appoint a Vakil for the minor party (for whom he acts as guardian) till the decree is passed in the suit. Under Order III, Rule 4, the appointment of the Vakil continues in force until determined (1) with the leave of the Court, (2) by a writing signed by the client or the Pleader, or until the client or the Pleader dies or until all proceedings in the suit are ended so far as regards the client. The 'client' is the minor party and not the guardian. The vakalat, therefore, given by the guardian continues in force till the minor dies or till it is revoked in writing with the Court's permission. The client's attaining his majority does not, according to Order III, Rule 4, determine the authority of a Vakil appointed for him. I am, therefore, clear that the petition itself (as one for setting aside an exparte decree) was wholly misconceived and on that ground also the District Judge's order can be upheld. (I, of course, assume that the guardian was validly appointed).

4. Then it was argued that this might be treated as a petition under Section 151, Civil Procedure Code (the section which saves the inherent power of the Court to do substantial justice). The answer to this argument is that the petition itself indicates that substantial justice has not suffered, except in so far as the erroneous conclusions (if any) of the District Judge on the facts and law are concerned, and such erroneous conclusions can be set aside as regards the appellant also in the principal appeal against the decree itself filed by the defendants Nos. 1, 2 and 4. Further, there is no appeal to this Court against orders on petitions filed under Section 151, Civil Procedure Cole, unless they fall under the category of orders from which appeals are allowed by the other provisions in the Civil Procedure Code. Lastly, even treating this appeal as a petition to revise (under Section 115 of the Civil Procedure Code) the order of the District Judge (refusing to re-open the case on the petition filed under Section 151), this is not at all a St case to exercise the revisional powers under Section 115, and the reasons why it is not a fit case have been sufficiently indicated already. Farther, I am not sure that there has been any irregularity at all in connection with the trial of the case so far as the 3rd defendant is concerned, much less a material irregularity. There is no provision in the Code requiring the plaintiff to issue a fresh summons to a minor defendant after he attains majority. On the contrary, the analogy of Order XXXII, Rule 12, (which relates to a minor plaintiff attaining majority) shows that it is for the minor defendant attaining majority to elect to proceed with or abandon the defence, and after he so notifies his election, the title of the suit may have to be changed as 'A. B. late a minor by C. D. guardian for the suit, but now having attained majority'. As regards the irregularity under Order XXXII, Rule (4), by which notice is required to be given to the minor himself before a guardian is appointed for him in a suit, it is difficult to realize the reason of the rule as enunciated by the Legislature in such very wide language. Supposing the minor is an infant, a month old, it is impossible to appreciate why the Legislature requires notice to be given directly to this infant in arms before the guardian for the suit is appointed for this infant. In fact, it is incapable of receiving and understanding the notice. (It was probably on that ground that the High Court on the recommendation of the Rule Committee has on 2nd March 1914 amended this Order XXXII, Rule 3 (4), by deleting the words' to the minor.') As under Order XXXII, Rule 15, the provisions contained in rule 3 (4) are made applicable also to lunatics or idiots, it is difficult to see that the Legislature could have intended that the notice should go to a lunatic-defendant who cannot understand the notice before a guardian in the suit is appointed for him.

5. In the next place, even if this was an irregularity, it did not vitiate the appointment of the guardian and T need only refer to Rambrichh Ram v. Tarak Tewari 33 Ind. Cas. 805. on this point [the same case as 14 A. L. J. 589. Further, in a much stronger case where majors were treated as minors from the very beginning, it was held in Ramachari v. Duraisami Pillai 7 Ind. Dec. 474. that they were estopped from re-opening the matter even by a fresh suit if they had knowledge of the proceedings and kept silent.

6. In the result, I would dismiss the appeal with costs.

Ayling, J.

7. The only point in the case on which I feel doubt is that arising from the strict wording of Clause 4 of Order XXXII, Rule 3, and this, I must confess, has occasioned me considerable difficulty. It has been argued with much force for appellant, that this clause renders any order of appointment of a guardian ad litem without the prescribed notice absolutely null and void. On the other hand a Bench of the Allahabad High Court, in a judgment which my learned brother is prepared to follow, Rambrichh Ram v. Tarak Tewari 33 Ind. Cas. 805. has treated the absence of notice as a mere irregularity and that too in a case much stronger from the minor's point of view than the one with which we have to deal. In the Allahabad case, the guardian appointed was an official of the Court, who, in fact, made no defence of the minor's interests. In the present case the guardian appointed was the minor's own brother, who was himself a party, whose interests were apparently identical with those of the minor, and who strenuously contested plaintiff's claim. In fact the objection on the ground of lack of notice does not seem to have been taken in the lower Court and is a purely technical one, based on no real grievance to the minor, and apparently raised solely for the purpose of delay. In such circumstances, I am not prepared to differ from the conclusion arrived at by my learned brother.

8. If the appointment of 1st defendant as petitioner's guardian be treated as valid, I am satisfied that the appointment of the Vakil engaged by him on the latter's behalf did not terminate with petitioner's attainment of majority and that petitioner cannot be treated as not represented at the close of the case.

9. I agree that the appeal should be dismissed.


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