Ramendra Mohan Datta, J.
1. This is an application for an order, inter alia, for stay of all further proceedings relating to and/or arising out of the ex parte decree dated March 28, 1964, passed in Suit No. 2678 of 1953 including the pending reference in respect thereto and/ or for stay of further operation of execution of the said decree. In the alternative, an order of injunction has been prayed for restraining the defendant, his servants and agents from taking any further or other steps in execution of the ex parte decree dated March 28, 1964 passed in Suit No. 2678 of 1953 and/or from proceeding with or continuing the said pending reference thereunder.
2. This case has a very long history behind it.
3. The suit being Suit No. 2678 of 1953 (Jagadish Prasad Tulshan v. Keshav Deo Tulshan and another) was instituted against the petitioner and against one Bharat Fira & General Insurance Limited. The said Jagadish Prasad Tulshan being a minor instituted the said suit through his next friend and the certificated guardian by the name of one Puranmall Jaipuria. The certificated guardian was appointed under the Guardians and Wards Act, 1890 some time in Juno 1950.
4. In a previous proceeding Mr. L. P. Agarwalla, Solicitor, acted on behalf of Keshav Dco Tulshan, one of the defendants in that suit and accordingly Messrs. P. D. Himatsinghka & Co., the then solicitors for the said minor plaintiff Jagadish Prasad Tulshan by their letter dated July 31, 1953 enquired of the said solicitor Mr. L. P. Agarwalla whether he had instructions to accept the service of the writ of summons on behalf of Keshav Deo Tulshan. No reply was received from the said solicitor and accordingly the writ of summons was caused to be served through the Court at Sealdnh on or about September 13, 1953. The writ of summons was also served on the Insurance Company being the other defendant against whom the said suit was proceeded with. The defendant Keshav Deo Tulshan neither entered appearance nor filed any written statement.
5. By an order dated September 3, 1956 the said Puranmull Jaipuria was discharged from further acting as the certificated guardian and the next friend of the minor plaintiff in the said suit and in his place Smt. Omraodcvi Tulshan the mother of the minor was appointed the certificated guardian and next friend of the minor. The minor plaintiff Jagadish Prasad was governed by the Indian Majority Act and accordingly he was to attain majority upon completion of the age of 21 years.
6. By an order dated August 28, 1961 on the application of the said Jagadish Prasad it was recorded that he had attained majority. By another order dated September 11, 1961 the mother was discharged from further acting as the certificated guardian and next friend of Jagadish Prasad in the said Suit No. 2678 of 1953.
7. On the basis of the statements in the several affidavits of the said two certificated guardians and of the said Jagadish Prasad himself it was argued that the said Jagadish Prasad on September 11, 1961 could not and as such did not attain majority. Accordingly, the discharge of the mother from acting as the next friend of Jagadish Prasad, from the suit left the minor without a representative and as such no decree could be validly passed in such a suit.
8. It is contended that Jagadish remained a minor and a suit by the minor without his next friend will make the decree null and void. It is well settled that a decree passed against a minor defendant without the appointment of a guardian-ad-litem is a decree without jurisdiction and in effect there is no decree against the minor because the minor not having been represented by a guardian would not be treated as a party at all in the suit. Such a decree, if passed, is a nullity as against such minor defendant; but the point that has been argued before me is that the same principle should apply in the case of a minor plaintiff as well. If he is not represented by a next friend before the decree is passed then the decree would be without jurisdiction and would be a nullity,
9. As to whether in fact the defendant Jagadish Prasad had attained the age of 21 years at the date of the discharge of the next friend is a question of fact which can be finally decided in the suit but it appears that the legal proposition raised herein on behalf of Keshav Deo Tulshan would require careful consideration at this stage. Accordingly, for the purpose of this interlocutory application I shall proceed to examine the said legal proposition on the assumption that at the dale of the discharge of the mother as the next friend of the minor the minor did not attain majority and that the suit was decreed in favour of the minor and against the said Keshav Deo Tulshan at a time when the said Tagadish Prasad Tulshan was still a minor. On the basis of tho said facts the point before me is now a pure point of law and if at this interlocutory stage the law op-pears to be clearly established that even though the said Jagadish Prasad was a minor at the time of the passing of the decree, such a decree was not a nullity then at this stage no relief should be granted to the Raid Keshav Dec Tulshan on this point in this application. Tf, on the other hand, the legal position is that such a decree is a nullity or at least that there is a plausible and/or arguable case for such a proposition then the plaintiff Keshav Deo Tulshan is automatically entitled to the reliefs prayed for at this stage vi/., that the pending reference would be stayed until the disposal of the suit. This is, of course, quite apart from the determination of the next point raised herein that the summons was fraudulently suppressed from the defendant Keshav Deo which point will have to be separately dealt with if I find against Keshav Deo on the first point as indicated above.
10. If the provisions of Order 32 of the Code of Civil Procedure are analysed it would appear that a distinction between the two lines of cases have heen maintained In procedural matters connected with a suit by and against the minor. Various decisions have been placed before me and, in my opinion, the same distinction has been maintained in the said decided cases. Tt would also appear that the principles involved in such procedural matters are somewhat different in respect of the cases where the minor is the plaintiff and where the minor is the defendant.
11. The provision of Order 32, Rule 1 of the Code requires that although the minor plaintiff would himself be the party to the suit, yet because of his immaturity his interest should be looked after or watched by a matured and/or an adult person. It contemplates that prior to the institution of the suit the minor must have the assistance of such an adult person. The underlying principle appears to be this that if the minor gets a decree in his favour then his interest is not prejudiced but if he fails in his attempt and the suit is dismissed with costs then the defendant's right to recover such costs would be in jeopardy. To protect such interest of the defendant under such circumstances, Rule 2 thereof provides that if the defendant did have the opportunity to know about the minority of the plaintiff the defendant could have come up before the Court and applied under the said Rule 2, and the plaint, under such circumstances, might be directed to be taken off the file and the pleader or other person by whom such plaint was presented might be personally saddled with costs so that the defendant would he in a position to recover such costs when so awarded in his favour, but in such an application the Court would not be bound to make an order directing the plaint to be taken off the file. Discretion has been given to Court to make such order as it would think fit. This clearly shows that the institution of the suit by the minor is not, ipso facto, bad and the plaint does not become defective and it remains a good and an effective one. In such an application whether the minor has attained majority or not can he decided. But if no such objection is taken and no application is made by the defendant, the question as to the minority of the plaintiff cannot arise after the decree is passed in the suit on the question relating to the validity thereof. In such a case the defendant would be deemed to have taken advantage of the position. He took the chance of the suit being dismissed on the basis of his written statement and after having failed in that attempt and after allowing the decree to be passed against him ho will be precluded from raising the point of defect in procedure for the purpose of challenging the said decree. In such a case when the plaintiff minor gets a decree in his favour there is no question of the defendant's suffering any prejudice as is contemplated under Rule 2 of Order 32 of the Code of Civil Procedure. From that point of view it must be held that the provision of Order 32 has been enacted for the purpose of protecting the interest of the minor without causing any prejudice to the interest of the defendant.
12. Rules 1 and 2 of Order 32 relate to the institution of the suit by a minor without a next friend. Rules 8, 9 and 10 thereof deal with cases where the suit is properly instituted by the minor by a next friend hut at a subsequent stage prior to the passing of the decree the next friend either retires or is removed or dies. In such event, the Court's duty is to render assistance to the minor plaintiff who is so left alone, by allowing some other person to come forward and to be replaced in the place and stead or the outgoing next friend. Until the said irregularity or defect in procedure, caused by reason of such vacancy is cured, the Court may stay such proceedings. The procedure to be followed in such cases would be to some extent different from the procedure to be followed in respect of the institution of the suits by the minor and in the former case the question of taking the plaint off the file would not arise because the minority of the plain-till is already established and because the plaint, as filed, has already duly complied with Rule 1 thereof. All that the Court is required to do at that stage of the proceedings, is to enable the minor or the person who is looking after his interest, to get a suitable person appointed as the next friend in the place and stead of the outgoing and until that is done, not to allow the suit to be proceeded with and will make an order staying the suit.
13. The propositions discussed above in respect of such cases would find sufficient support from the principles underlying the express language used in Rule 5 of the said Order 32. It provides to the effect that in respect of orders passed either in the suit or in an application by the minor without such a next friend or a guardian, the Court in its discretion may discharge the same if it will go to affect the interest of the minor. In other words, it will remain a valid order if in spite of such defect in procedure it would ensure for the benefit of the minor. This clearly shows that the underlying principle involved therein is that if the minor with an immature brain has done something resulting in an order which has benefited him instead of causing him prejudice, such an order may not be disturbed. The order Will remain a valid order. But if by obtaining such an order his interest would be affected thereby then only such an order may be discharged by the Court. The expression 'by which a minor is in any way concerned or affected' in Sub-rule (2) of Rule 5 of the said Order, when read along with the discretion conferred on Court and the provision for personal liability for costs, must mean, when the order has gone against the minor or against his interest; otherwise the provision would have been made mandatory.
14. The distinction, as discussed above, would be further revealed from an analysis of the said provisions of Order 32 of the Code of Civil Procedure. Whereas in the case of a minor plaintiff the person who comes to his assistance as the next friend is a private person, subject to his filing an affidavit of competency, the guardian of a minor defendant is an officer of the Court. Such a guardian is appointed by the Court after the institution of the suit. At the time of the institution of the suit the minor defendant is not represented by any person. He is brought into the suit as a party defendant without any act or volition on his part. Normally reliefs will be claimed against him when he is made a party defendant in the suit. His rights have to be protected. Unless somebody would be there to represent him in the suit the minor would not be deemed to be a party to the suit. Hence, if the decree is passed against him without any guardian being appointed it would be deemed as though he didn't have any existence in the suit. Accordingly, when the decree would be passed against him it would be deemed as though there was no decree against him and such a decree would be a nullity. In the case of a minor defendant, the absence of the guardian docs not make it only an irregularity in procedure. It is a matter of substance and goes to the very root because until the minor is represented he would not be a party to the suit and consequently to the decree.
15. The proposition that a decree passed in a suit by the minor without a next friend is not a nullity will also be supported by the reservation made in Section 32 of the Presidency Small Causes Court Act (15 of 1882) whereunder a suit can be filed in the Court of the Small Causes for the recovery of a sum not exceeding Rs. 500/-vhich is claimed by the minor on account of his wages or for the work done as the servant. Accordingly, if such a decree is a good decree then there can be no reason, on principle, why a decree for a higher amount will, in like circumstances, be a nullity and why a different principle will be applicable.
16. In my opinion, the provision of Rule 2 of Order 32 has been enacted for the purpose that in case a suit instituted by or on behalf of a minor without a next friend the Court acting under Sub-rule (2) might be in a position to regularise the irregularity as soon as it is brought to the notice of the Court. If the defect in procedure cannot or should not be cured in the facts and circumstances of the case, then in the interest of the minor the Court is likely to order that the plaint be taken off the file.
17. It necessarily follows that the irregularity in instituting the suit docs not make the suit wholly bad but makes it a defect in procedure. The only way it can be corrected is when the defendant makes an application under the said Rule 2 of Order 32. If such an application is not made in between the time of the institution of the suit and the passing of the decree thereon the defendant would be precluded from raising the said point thereafter and will not be permitted to assert that the decree passed in such a suit is in any way a bad deccree. In Sub-rule (2) of Rule 2 of Order 32 the Court has been given wide powers to make such order as the Court might think fit after hearing the objections raised by the pleader or the person concerned who presented the said suit on behalf of the minor.
The initial onus will be on the defendant in such an application to prove that the plaintiff is a minor. If the Court would be satisfied upon the materials placed before it that the plaintiff is a minor and that such fact was suppressed on behalf of the minor to deceive the Court then the Court may direct the suit to be taken off the file and make such person or pleader personally liable for costs. If there is no such mala fide motive the Court might make such order whereby an opportunity would be created for the minor being represented by a next friend and until that would be done the suit might be stayed. These are various orders which the Court might think of passing in appropriate cases but if the defendant would not make such an application and a decree would be passed in a suit by the minor without a next friend then the defendant would be precluded from taking the point at a subsequent stage after the minor had attained majority. The decree, in such circumstance, docs not become a nullity because the Court proceeds in the basis that it was not a suit by the minor and the suit was properly instituted. The decision of the question as to whether at the time of the passing of the decree the plaintiff was a minor would be quite immaterial at a stage when such a minor had already attained majority. Similarly, when the plaintiff at the time of the institution of the suit was a minor and duly sued by a next friend and subsequently the next friend is discharged on the statement by the minor that he has since attained majority and if it ultimately transpires that he actually did not attain majority at the date of the discharge of the next friend, any decree passed in such a suit under such circumstances will not make the decree a nullity and will be an effective and a valid decree on the very same principle that unless the objection would be taken by and on behalf of the defendant prior to the passing of the decree the defendant would be precluded from raising the said question of minority of the plaintiff at a subsequent point of time. The defect in procedure, if any, would be deemed to have been waived by the defendant. This it seems is based on sound principle. What could not be expected to be done by the minor without the assistance of an adult person had actually been done by his own skill and wisdom. Hence he needed no further protection.
18. If in the above light Rule 5 of Order 32 is considered, the intention of the legislature would be quite apparent and will throw sufficient light on the proposition that the decree passed under such circumstances would not be a nullity. Rule 5 deals with an application prior to the decree or it may be an application in a proceeding for instance, an application under the Guardians and Wards Act or an execution application. Sub-rule (1) of Rule 5 makes it obligatory on the part of the minor to make such an application by his next friend or by his guardian for the suit. Sub-rule (2) thereof contemplates cases where the minor is not represented by a next friend or a guardian for the suit in such an application. Under such circumstances, the order passed in such an application may be retained as a good order or may be discharged by the Court and the discretion has been given to Court to act in such manner as it might think fit and proper in the facts and circumstances of each case. In short, even though the order is made without the next friend or a guardian for the suit yet such an order cart still be a valid and an effective order even though the minor is not represented by an adult. If the Court would think fit to discharge such an order the Court will make the pleader personally liable for costs if in obtaining such an order he had knowledge of such minority or might reasonably have known of the same. If such orders have been passed and if they would be for the benefit of the minor the Court in its discretion might not discharge the same and accordingly, such orders would remain valid and effective orders in spite of the fact that the orders were passed at the instance of the minors who were not represented by a next friend or a guardian.
19. That being the position in law, the same principle can be applied in the case of a decree and does not make the decree a nullity.
20. The principle involved in the procedure laid down under Order 32 of the Code of Civil Procedure is that when a decree is passed against the minor it goes to affect his rights and would prejudice his interest but if a guardian would be there such prejudice is removed because his interest is being properly looked after or watched by the guardian. But in the case of a minor plaintiff who is to institute a suit the alternatives are that either he gets a decree in the suit in which case he is benefited or he loses by the dismissal of the suit in which case he is likely to be saddled with costs. Rule 2 has been enacted to safeguard the interest of the defendant against such a minor plaintiff.
21. Mr. Shankar Ghosh appearing on behalf of the plaintiff cited before me several decisions including a Supreme Court decision. Mr. Ghosh admits that none of these eases relate to the minor's suing as the plaintiff without a next friend. All these cases cited by Mr. Ghosh relate to the cases of a decree being passed against the minor without a guardian. It has been consistently held that such a decree if passed against a minor without the guardian-ad-litem is a nullity. In the case of Amulya Ratan Mu-khcrjee v. Sm. Kanak Nalini Ghosc, : AIR1950Cal30 the Division Bench of this Court dealt with a case of a lunatic who stands on the same footing as that of a minor in the matter of procedure in respect of a suit. It was observed by the Calcutta High Court relying on the Privy Council case of Mt. Rashid-un-nisa v. Muhammad Ismail Khan, reported in (1909) 36 Ind App 168 (PC) that a decree obtained without representation in a case where representation was necessary must be regarded as a decree against a person not a party to the suit and was therefore without jurisdiction and void. In that case the decree was accordingly declared to be null and void. In the above Privy Council case it was observed that the minor was never a party to the said suit because he was not represented and accordingly, a decree passed against the minor could not be said to be a decree passed against the minor because the minor Was not a party to the suit at all due to want of representation. In the case of Ram Chandra Arya v. Man Singh, : 2SCR572 the Supreme Court considered such a decree which was passed against a lunatic, in that case the decree was passed and the property was sold in execution and the sale certificate was issued. Formal delivery of possession was at that time taken. About 5 years later the decree-holder wanted to file a suit for possession of the house and at that point of time it was contended that the judgment-debtor was a luna-tie and the suit was instituted against a lunatic without a guardian-ad-litem having been appointed. Accordingly the decree was a nullity. It was found as a fact that the judgment-debtor was insane when the suit in which the decree was passed was instituted as well as when the house was sold in execution of the decree passed In that suit. The Supreme Court observed:
'It is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable.'
22. Applying that principle in the case of lunatic the Supreme Court held that the decree was to he treated as without jurisdiction and void and also declared the sale to be void.
23. Mr. Ghosh also referred to the case of Ferozi Lal Jain v. Man Mal, : AIR1970SC794 where the Supreme Court held that a compromise decree passed in contravention of Section 13(1) of the Delhi and Ajmer Rent Control Act (38 of 1952) was a nullity. In my opinion, that case cannot have arty application in the facts and circumstances of this case before me because that case was decided on the basis of the language used in the said section of the said statute which, inter alia, provided that no decree or order for the recovery of possession of any premises would be passed by any Court in favour of the landlord against any tenant except under the circumstances as provided therein.
24. In my opinion, these cases have not in any way touched the principle laid down in a series of cases where the plaintiff as a minor has sued without a next friend and a decree has been passed thereon.
25. Mr. Bachawat appearing on behalf of the defendant Jagdish Prosad Tul-shan cited before me a number of cases which dealt with the case of a minor suing without a next friend. In the case of Kama-Jakshi v. Ramasami Chetti, reported in (1896) ILR 19 Mad 127, the plamtiff was 17 years old at the time the suit was instituted. She did not sue by a next friend. No objection was taken by the defendant about the same until the case came up before the first appellate Court, by which time the plaintiff had attained majority. It was held that since no objection was taken to that effect until after the plaintiff had attained majority, the irregularity was waived. The said Madras Court relied on an earlier Calcutta case of Doorga Mohun Dass v. Tahir Ally, reported in (1895) ILR 22 Cal 270 (274) and an English case of In Ex parte Brocklebank, reported in (1877) 6 Ch D 358 and held that it was an irregularity which could be waived by the conduct of the defendant. The contention raised on behalf of the defendants that the proceedings in those cases were altogether void were rejected by the said decisions.
26. In the case of Mt. Full Bibi v. Khokat Mondal, reported in AIR 1928 Cal 537, the same point came to be considered by another Division Bench of this Court. Page, J. in delivering his judgment at page 539 observed :
'The policy of the legislature in enacting Order 32 was that where a minor has instituted a suit in his own name the proceedings in normal cases should not be treated as abortive, but that an opportunity should be given to constitute the suit in tho regular manner.'
The passage appearing in Daniell's Chancery Practice, 6th edition page 105 was quoted from the above case reported in (1895) TLR 22 Cal 270, and the judgment proceeded:---
'But the ground upon which protection is afforded to a defendant in a suit instituted by a minor is removed when the defendant at all material times is aware, or has received notice, of the minority of the plaintiff, and yet elects to proceed to trial and take his chance of obtaining a decree in his favour on the merits without raising any objection to, or issue upon, the maintainability of the suit; and prefers the objection for the first time on appeal when the trial has gone against him.'
Upon those observations the Division Bench rejected the said contention as misconceived both on principle as also on the authorities of the said Calcutta case and the said Madras case referred to hereinabove.
27. The said Madras case was relied on in the case of Sulaiman v. Abdul Sha-koor reported in AIR 1940 Nag 99.
28. In the case of Thimmappa V. Hanusavva, reported in AIR 1959 Mys 157, the Mysore High Court is also of the view that there is a marked difference between the appointment of a next friend and the appointment of a guardian. It is observed:--'In the case of next friend, he takes the initiative and institutes the proceeding. No initial appointment is neeessary. It is true in a case falling under Order XXXII, Rule 9 (i) the next friend may be removed by the Court; otherwise he continues as the next friend. But in the case of a guardian there must be an appointment by a Court as required by Rule 3 (i) of Order XXXII.'
29. In the case of Gulabchand Na-mila! v. Fulchand Hirachand, : AIR1959Bom232 the Division Bench of that Court observed that there was a difference between a decree obtained against a minor without appointing a guardian for him and a decree made in a suit brought by the minor plaintiff, without being represented by a next friend. The Division Bench observed that there was no such duty imposed on the Court in the case of a minor plaintiff as have been imposed by the provisions of Order 32, Rule 3 and Rule 11, sub-rule (2) of the Code of Civil Procedure. The said Bombay case has gone a step further and has held that the principle of Sub-rule (2) of Rule 5 of Order 32 would apply even where a decree had been passed in a suit by a minor without a next friend. In the said Bombay case the aforesaid principles were discussed in an application under Section 151 of the Code of Civil Procedure.
30. A Bench decision of the Rajas-than High Court in the case of Narpat Raj V. Babulal, relied on the said Nagpur case reported in AIR 1940 Nag 99 and the said Bombay case : AIR1959Bom232 and held that the decree passed In such a case was not a nullity and the defect amounted to a mere irregularity which could be waived by the defendant.
31. In my opinion, the principles laid down in the above cases are still good law and as such they have neither been cited in nor overruled by the above Supreme Court case : 2SCR572 which dealt with the case of a minor defendant who was not represented by a guard-ian-ad-litem. That being the position in law, I have no hesitation to come to the conclusion that the decree passed herein cannot, in any event, be a nullity.
32. This brings us to the next point viz., whether the writ of summons in the said prior suit was fraudulently suppressed as against Keshav Deo Tulshan. The question is whether Keshav Deo Tulshan was prevented by the fraud of Jagdish Prosad Tulshan from placing his case before the Court. (After discussing the evidence in Paras 33-37, the Court held that fraud was not proved. The judgment proceeded:)
33. In my opinion, the petitioner Keshav Deo has failed to make out a prima facie case for stay of the reference or for injunction as prayed and the application must be and is hereby dismissed. Costs will be in the cause.