Trevelyan and Ameer Ali, JJ.
1. The facts necessary for the determination of this appeal are as follows:
It has been found as a fact by the Lower Appellate Court that the plaintiffs have a good title to the land in question, and that they and their predecessors in title have been in possession thereof since 1872.
2. In 1880 a suit was brought on behalf of the present plaintiffs, who were then minors, by their aunt who described herself as their mother and next friend, and who had obtained a certificate to represent their estate under Act XL of 1858. Thai suit was against the present defendants and sought for Confirmation of possession of one-anna out of the one-anna and four-pie share, which is in question in the present suit. On the 24th of November 1880, that suit was struck off by the Munsif for default of appearance, and on appeal the order of the Munsif was confirmed.
3. The lower Court of appeal in this case has found as a fact that the suit of 1880 miscarried, owing to gross want of care and diligence on the part of the next friend. He further finds 'her neglect to prosecute the suit with due care was misconduct on her part.' The plaintiffs having attained majority have brought this suit for the purpose of obtaining a declaration that the decree in the other suit, and the proceedings thereunder, are inoperative against them and also for a declaration of their right to the property.
4. They are met by the statutory bar contained in Section 103 of the Civil Procedure Code, which provides that, when a suit is wholly of partially dismissed under Section 102, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.
5. The question, therefore, is whether gross negligence on the part of a next friend prevents the effect of this bar.
6. The statutory bar in Section 103 cannot have a greater effect than that provided by Section 13, or, in other words, an infant cannot be in a worse case where his next friend or guardian fraudulently or negligently omits to appear than where he appears, and fraudulently or negligently submits to a decree or otherwise prejudices the interest of the infants. The question, therefore, reduces itself to the question whether the negligence of a next friend prevents the operation of the law of res judicata.
7. According to the law, as administered in England, gross negligence as well as fraud prevents the operation of the bar.
8. In Macpherson on Infants, p. 386, we find the following: 'An infant plaintiff, though thus favoured in the course of the suit, is as much bound by a decree and by all the proceedings in a cause as a person of full age, and cannot, nor can his representatives, open the proceedings, unless upon new matter, or on the ground of gross laches, or of fraud and collusion, which will annul the proceedings of the Courts of Justice as much as any other transactions.'
9. In Simpson on the Law of Infants, first edition, p. 475 (2nd edition, p. 512), we find the following:
A decree may also be impeached where there has been gross negligence by the next friend in the conduct of the infant's case, or new matter discovered since the date of the decree.
10. In the case of In re Hoghton L.R. 18 Eq. 573 (576), Sir R. Malins, V.C, says:
The question which I have to decide is whether this infant, on whose behalf a decree was taken by consent in 1867, is to suffer by any negligence or want of knowledge on the part of her then next friend. I am clearly of opinion she cannot be called upon to endure that inconvenience...The proposition that an infant of tender years may have her whole fortune wrecked by the neglect of her friend is so monstrous that I cannot pay attention to it. She is entitled to have a next friend who is diligent and who will protect her interests.
11. From this it is clear that, according to the law as administered in England, the gross negligence of his next friend would entitle an infant to obtain the avoidance of proceedings undertaken on his behalf. We can see no reason why in this country an infant should be in a worse position. In cases outside Calcutta we are bound, in the absence of statutory provision, to apply rules of equity and good conscience. These rules cannot be more restricted than the rules of equity administered in England.
12. There is no authority in this country which could prevent us giving effect to the English rule.
13. We are pressed by the decision of a Bench of this Court in the case of Eshan Chundra Safooi v. Nundamoni Dassee I.L.R. 10 Cal. 357. In that case there was no question either of fraud or of negligence. The learned Judges expressed their opinion that the plaintiff might have relieved himself of fraud in one of three ways : First, by' an application to the Court in the suit in which the withdrawal took place; secondly, by a regular suit to set aside the judgment founded upon the withdrawal; or, thirdly, by bringing a fresh suit for the same cause, and setting up the fraud as an answer to the statutory bar. As fraud and negligence are, in our opinion, on the same footing, the plaintiff has the same relief in each case. The only passages in the judgments in Eshan Chundra Safooi's case which can be said to conflict with the proposition of law which we are laying down, are where Sir R. GARTH, C.J., says at p. 365 of the report: 'it is difficult to see why a suit properly brought on behalf of any other person, who cannot act for himself, should be subject (so far as the present question is concerned) to other rules than those which are applicable to suits brought by parties in their own names'; and where Mr. Justice Cunningham says at p. 368: 'I think we must take it to have been the law that where a minor is represented in the manner sanctioned by the law, and the person so representing him adopts a procedure to which particular consequences attach by the Code, then those consequences affect the minor.'
14. These general propositions were, as appears from the rest of the judgments, subject to the exception of fraud. We have no doubt that, if the question of gross negligence had been in any way before them, their Lordships would have excepted that case also.
15. There is an authority which to some extent supports the view which we have taken in this case. In the case of Koilash Chunder Sirkar v. Gooroo Churn Sirkar 3 W.R. 46 the Judges say this: 'There remains the special appeal of Koilash Chunder, and on this point we think that the Judge was clearly wrong. He threw out a certain portion of the claim on the ground that it ought to have been included in the original suit brought by Goluck Monee; and that as it was not so included, Koilash, the son, was barred by Section 7 of Act VIII of 1859 from preferring it. On this we observe that when Goluck Monee instituted the suit on behalf of Koilash, the latter was a minor, and there is no law which prevents a minor when he comes of age, suing in his own name for anything that his guardian, either through ignorance or negligence, has omitted to prosecute. If this were the law no minor would be safe, and we do not see how Koilash, when he attained majority, was debarred from claiming, and that in the suit originally instituted by his guardian, such property as that guardian had omitted in the schedule of the plaint.'
16. Section 7 of Act VIII of 1859 corresponds with the first part of Section 43 of the present Code, and is as much a statutory bar as is Section 103; so if negligence gets rid of the statutory bar under Section 43, it equally gets rid of the one imposed by Section 103.
17. In our opinion, the view of the Court below is right. We dismiss this appeal with costs.