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Donthi Venkataratnam and ors. Vs. Nagappa and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1934Mad616; 152Ind.Cas.163
AppellantDonthi Venkataratnam and ors.
RespondentNagappa and anr.
Cases ReferredNeeluveni v. Narayana Reddy
Excerpt:
minor - minor plaintiff--non-appearance of guardian--dismissal of suit for default--restoration--civil procedure code (act v of 1908), order ix, rule 9. - beasley, c.j.1. the suit, the subject of this revision petition was a suit by certain minor plaintiffs represented by their mother as next friend. when the suit came on for final hearing the pleader for the plaintiffs was not ready and neither was the pleader for the defendants. an order was-made by the district munsif dismissing the plaintiff's suit, later an application was made on behalf of the next friend for a setting aside of the dismissal order and for a restoration of the suit to the file. on that occasion it was alleged that the mother, the next friend of the minor plaintiffs, was ill and even on this occasion--the occasion when the application was made-she was not present. the district munsif remarking that the plea of illness is generally set up whenever a party is absent, a.....
Judgment:

Beasley, C.J.

1. The suit, the subject of this revision petition was a suit by certain minor plaintiffs represented by their mother as next friend. When the suit came on for final hearing the Pleader for the plaintiffs was not ready and neither was the Pleader for the defendants. An order was-made by the District Munsif dismissing the plaintiff's suit, Later an application was made on behalf of the next friend for a setting aside of the dismissal order and for a restoration of the suit to the file. On that occasion it was alleged that the mother, the next friend of the minor plaintiffs, was ill and even on this occasion--the occasion when the application was made-she was not present. The District Munsif remarking that the plea of illness is generally set up whenever a party is absent, a statement with which I am inclined to agree, and stating that no doctor's certificate had been produced in proof of that allegation, held that no sufficient case had been made out for setting aside the order of dismissal. With all respect to the District Munsif he has entirely ignored the fact that the plaintiffs were minors represented by their mother as next Mend and has not addressed himself to the question as to whether their interests could be allowed to be prejudiced by the absence of the mother at the hearing. The plaintiffs being minors could not themselves appear. Two of them are of such an young age that it would be impossible for them to appear even if they had been permitted to do so, Their interests were in the hands of their mother and she was absent. It might have been true that she was ill Then her absence from the Court would be due to illness. I see no reason for holding if that was the cause of her absence that the minor's interests should be prejudiced by reason of that unfortunate happening. If the mother was not ill and that was not the reason for her absence then it appears to me that there may be another alternative, namely, that she was negligent. Here again, I am of the opinion that the minor's interests ought not to be allowed to suffer by reason of the negligence of their mother, the next friend. If that alternative be not present then there may be another, namely, that the mother was deliberately acting hostilely and adversely to the interests of the minors. Hera again--and this is an afortiori case--the minors' interests cannot; be allowed to be prejudiced by that action so adverse to the interests of the minors. 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 Pershad v. Hirday Narain 6 CLR 69 and by a decision of Curgenven, J. in Kathaswami Chettiar v. Ramachandran : AIR1934Mad248 , and the decision in Neeluveni v. Narayana Reddy 53 Ind Cas. 817 : 43 M 94 : 37 MLJ 599 : 26 MLT 377 : 10 LW 606 : (1920) MWN 19. For these reasons, this Civil Revision Petition must be allowed with costs here and in the trial Court and the suit restored to the list for disposal according to law.


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