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Rukmani Ammal Vs. Veerasami Iyengar and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in80Ind.Cas.942
AppellantRukmani Ammal
RespondentVeerasami Iyengar and anr.
Cases ReferredMalkarjan v. Narhari
Excerpt:
civil procedure code (act v of 19081, order xxii rules 3, 5 - applicant found to be minor--application rejected--merits--remedy--appeal--suit--revision--proper course where applicant found to be minor. - .....and his daughter seethai ammal, the present 2nd respondent applied to be brought on record as legal representative. the district munsif found that rukmani ammal was a minor who had no right to apply in her own right and dismissed her application. having done so, he disposed of seethai animal's application by merely recording 'defendant (present 1st respondent) has no objection.' and rukmani ammal now applies to have both orders revised.2. i cannot hold that the district munsif acted irregularly in rejecting rukmani ammal's application, on the analogy of order xxxii, rule 2, he exorcised a discretion allowed him by law, though i think he exercised that discretion very hastily of. rationbai v. ghabbildas lalloobhoy 7 ind. dec. 5. but i cannot find that the district munsif was.....
Judgment:

Jackson, J.

1. In O.S. No. 420 of 1919 on the file of the Gourd of the District Munsiff of Sriraugam, the plaintiff Pichu Aiyar died. Both his widow Rukmani Animal, the present petitioner and his daughter Seethai Ammal, the present 2nd respondent applied to be brought on record as legal representative. The District Munsif found that Rukmani Ammal was a minor who had no right to apply in her own right and dismissed her application. Having done so, he disposed of Seethai Animal's application by merely recording 'defendant (present 1st respondent) has no objection.' And Rukmani Ammal now applies to have both orders revised.

2. I cannot hold that the District Munsif acted irregularly in rejecting Rukmani Ammal's application, On the analogy of Order XXXII, Rule 2, he exorcised a discretion allowed him by law, though I think he exercised that discretion very hastily Of. Rationbai v. Ghabbildas Lalloobhoy 7 Ind. Dec. 5. But I cannot find that the District Munsif was justified in adding seethai Ammal as legal representative without determining the question on its merits after notice had gone to Rukmani and she had raised the question. The mere fact that Rukmani was discovered to be a minor was no reason for not considering her plea that she was the rightful representative. Here the analogy to be applied is that under Order XXXII, Rule 3. The respondents do not attempt to justify the action of the Court which indeed is quite opposed to the oridinary duties of a Court in regard to minors, so much as to show that the petitioner has no right to move this Court for Revision. They contend that her remedy was by way of appeal against the order, or at any rate by way of suit after reaching her majority, and in any case her application has been unduly delayed.

3. There is no statutory right of appeal against an order under Order XXII, Rule 3. The Legislature has chosen not to give a right of appeal against orders under that rule. Lakshmi Achi v. Subrama Aiyar 29 Ind. Cas. 142 : 28 M.L.J. 491 : (1915) M.W.N. 327 : 17 M.L.T. 385. But respondents rely upon Ayya Mudali Velan v. Veerayee 58 Ind. Cas. 498 : (1920) M.W.N. 467 where it is held that an order rejecting the claim of a person to the legal representative of a deceased plaintiff is appealable in cases where such orders have also the character of decrees. If it is to have this character, the order must conclusively determine the rights of the parties in the suit, and it so happens that all the parties in Ayya Mudali Velan v. Veerayee 58 Ind. Cas. 498: (1920) M.W.N. 467. were parties in the suit, the 2nd defendant was the person applying to be plaintiff's legal representative. In Lakshmi Achi v. Subrama Aiyar 29 Ind. Cas. 142; (1915) M.W.N. 327 : 17 M.L.T. 385 and in the present case the persons applying to be legal representatives were never parties to the suit and this application having been rejected, they could never have been regarded as such and it is clear from Ayya Mudali Velan v. Veerayee 58 Ind. Cas. 498 : 12 L.W. 188 itself that the learned Judges still regarded Lakshmi Achi v. Subrama Aiyar, 29 Ind. Cas. 142 : 2 L.W. 403 : 28 M.L.J. 491; (1915) M.W.N. 327 : 17 M.L.T. 385.as good law in regard to the facts of that case (of. p. 815). I, therefore, find that the petitioner had no remedy by way of appeal and is entitled to move for revision.

4. I do not think it necessary to drive petitioner to a fresh suit, nor do I think that her remedy lies that way. The lower Court having appointed a legal representative that appointment, unless it is set aside, is final, and binds the estate. If the Court decides wrong the wronged party can only take the course prescribed by law for setting matters right, and if that course is not taken the decision, however wrong, cannot be disturbed. Malkarjan v. Narhari 25 B. 337: 5 C.W.N. 10.

5. I do not find that there has been inordinate delay. Petitioner first sought her remedy by way of review on grounds which were certainly not frivolous. Nor I do see any reason for holding that petitioner is still a minor, and even if she were, I should not reject her petition. On that account, there would only be a formal question of appointing a guardianad litem. Accordingly I allow C.R. Ps. 401 and 402 with costs, one set, I reverse the order of the lower Court and direct the District Munsiff to determine the question whether Rukmani Ammal or Seethaiammal is or is not the legal representative of the deceased plaintiff, Pichu Ayer and then proceed with the suit. C.R. Ps. Nos. 403 and 400 are dismissed with costs, one set.


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