1. The plaintiff filed the plaint in this suit on the 13th May, 1885, to recover possession of 4 hals, 1 lader 4 joists and 3 reks of land appertaining to pottahs Nos. 50891 and 161, which he purchased in execution of a decree as the property of one Sham Pershad The suit was brought against Tarini, defendant No. 1, and three other persons. The second defendant is described in the plaint as Nitobashini Chowdh-rain, guardian on behalf of her minor son, Suresh Chunder Warn Chowdhry.
2. The plaintiff alleged that defendant No. 1 and the husband of Nitobashini Chowdhrain and father of the minor Suresh Chunder, viz., Durga Churn, dispossessed him. All the defendants are stated in the plaint as living in commensality, i.e., are members of a joint family. On the 14th May the Subordinate Judge directed the plaintiff to produce within one day an affidavit to the effect that the mother of the minor defendant is his guardian. He, the Subordinate Judge, evidently understood from the plaint that the defendant No. 2 was the minor Suresh and not his mother Nitobashini, and the pleader who presented the plaint was evidently also of the same view. On the plaintiff making an application with the required affidavit, the Court on the 15th May passed the following order: The plaintiff having with an application produced the affidavit regarding the minor defendant being under the guardianship of his motherland the said papers being brought up with the plaint, it is ordered that the suit be registered and the summons he issued upon the defendants, &c.;, &c.; The defendants, other than the defendant No. 2, filed a written statement disclaiming their connection with the land in suit and denying having dispossessed the plaintiff. Nitobashini Chowdhrain filed a written statement alleging that a portion of the land in suit appertained to potash No. 165, and had been the property of her co-wife; that on her death it devolved upon her husband under the law of inheritance, and that since the death of her husband she has been in possession of it 'on behalf of the minor defendant.'
3. The Court of first instance dismissed the suit. On appeal the District Judge awarded a decree in favour of the plaintiff for a portion of the land claimed, finding that it appertains to the plaintiff's estate and not to the defendants' estate. The minor Suresh Chunder, represented by his mother as guardian, has preferred this second appeal.
4. The question that has been referred to us is, whether, under the circumstances, the decree ought to be set aside as against the appellant on either of the grounds mentioned in his eleventh ground of appeal. That ground is as follows:
That the minor Suresh Chunder Chowdhry not being made a defendant in proper form, and no order having been recorded by the Court; appointing his mother Nitobashini Chowdhrain guardian ad litem, the suit ought to have been dismissed.
5. As to the first branch of this ground, it appears to me that the suit was substantially brought against the minor. This appears from the orders of the Court referred to above and from the allegations made in the plaint and the written statement. The dispossession, it is alleged in the plaint, was by defendant No. 1, and the father of the appellant, and I gather from the judgment of the lower Courts that evidence was adduced to the effect that the father of the appellant was in possession of the disputed land On the death of the father of the appellant, the appellant, and not his mother, would represent the interest of the deceased person in the property in dispute. In the written statement filed by Nitobashini it was claimed as the property of the minor. An issue was framed with reference to the question of title set up respectively by the plaintiff and Nitobashini Chowdhrain on behalf of the minor appellant, and the District Judge has found that issue in favour of the plaintiff. Under these circumstances I agree with the learned Judges who have referred the case, 'that the suit was throughout regarded by the Court and by all those who took part in it as one against the minor.' That being so, the appellant ought not, in my opinion, to succeed on the ground that there was merely an error of form in describing him as defendant when be has not been prejudiced by that error. Section 578 of the Civil Procedure Code says that no decree shall be reversed on account of an error of this description.
6. The second branch of the eleventh ground of appeal is that no order was recorded by the lower Court appointing Nitobashini Chowdhrain AS guardian ad litem of the appellant. Now it seems to me that the Court, on the affidavit of the plaintiff being filed, applied its mind to the question whether the mother was a fit person to act as guardian ad litem, and I agree with the learned Judges who have referred this case, that it 'sanctioned the representation of the minor by his mother as guardian ad litem, though no order was drawn up on the subject.' If we are satisfied that the Court applied its mind to the consideration of the question of the representation of the minor, the mere omission to record a formal order sanctioning the representation by a particular person would not be a valid ground to reverse a decree; it would be a defect coming within the purview of Section 578 of the Civil Procedure Code already referred to I have said all that is necessary to answer the question referred to us. But another question has been argued before us. It is this, whether the appointment by the Court of the mother of the appellant as his guardian without any notice to him is void, and whether on the ground of this error the decree against the minor is liable to be reversed. The answer to this question will mainly depend upon the examination of the provisions of Chapter XXXI of the Code of Civil Procedure, that is, the chapter dealing with the subject of suits by and against minors. I find that the provisions of this chapter have been taken from the rules framed by this Court, regulating the practice in its Original Side on the 10th June 1874, and published in the Calcutta Gazette of 1874, page 1008. Of the rules adopted by this Court on that date, Nos. 8 to 35 bear upon this subject.
7. The first section of the Chapter, viz:
Section 440 has been taken from Rule No. 8
' 441 ' ' ' ' 10
' 442 ' ' ' ' 9
' 443 ' ' ' ' 11
' 444 ' ' ' ' 12
' 445 ' ' ' ' 13
' 446 ' ' ' ' 14
' 447 ' ' ' ' 15 & 16
' 448 ' ' ' ' 17
' 449 ' ' secondpart of No. 18,
the first part being omitted.
Nos. 19 and 20 have not been incorporated into the Act.
Section 450 has been taken from the first part of No. 21
451 ' ' ' second ' ' 21
452 ' ' ' third ' ' 21
453 ' ' ' fourth ' ' 21
454 ' ' Rule ' ' 22
455 ' ' ' ' 23
8. Rule No. 24 has not been taken at all.
9. Section 456, as it stood in the Code of 1877, was taken from Rule No. 25. In the Code of 1877, the words 'or by the plaintiff' to be now found in the section in question, which were added to it in 1882, were omitted.
10. Section 457 has been taken from Rule No. 26.(sic) precise in their proceedings so as to make them strictly in conformity with the law for it is notorious that it rarely happens that a minor, whether plaintiff or defendant, is properly described in the proceedings ; and consequently, much valuable time and money is needlessly spent in the Courts of Appeal in determining the exact position which such a person really occupies in the case. Such irregularities have been repeatedly noticed by this Court, and I trust that the prominence now given to them will have the desired result.
17. In order to make an infant effectively a defendant to a suit, so as to bind him by a decree in the suit, three things must in my judgment appear : First, that on the face of the plaint it purports to be against the infant; secondly, that the infant has been duly represented by a guardian ; thirdly, that he has been duly summoned, or that something has occurred to dispense with service of summons. In the present case, I agree with Mitter, J., that the first condition has been complied with. I read the body of the plaint in the same sense as he does, and that being so, I do not think the fault in the form of the title is fatal, though I do think such defects are most mischievous, inasmuch as they give rise to such uncertainty as has arisen in this case, and often prolong litigation, or afford grounds for an appeal to determine a point on which no doubt should possibly exist.
18. The real difficulty in the case is as to the other two conditions--service and representation of the infant. The procedure adopted was this. The plaintiff in his plaint named the infant's mother as his guardian. When he presented his plaint the Judge required an affidavit as to guardianship, and when the required affidavit was produced, an order was made that the plaint should be registered and summons issued
19. The Judge intended by this order, as is found, to sanction the representation of the infant by his mother ; but no formal order to that effect was drawn up. The summons was then served upon the mother. I do not think the absence of a formal order appointing the guardian is fatal, whereas here the record shows that the Judge has arrived at a judicial determination upon the point. But the procedure followed seems to me open to grave objection. The procedure for obtaining the appointment of a guardian ad litem is contained in Section 456 of the Procedure Code. 'An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor, or by the plaintiff. Such application must be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in question in the suit adverse to that of the minor, and that he is a fit person to be so appointed. Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, provided that he has no interest adverse to that of the minor.'
20. That section, I think, contemplates that an application by a plaintiff is to be made at such a stage of the proceedings that the infant has at least an equal opportunity of applying. I am of opinion that no order appointing a guardian ad litem for an infant defendant, on the application of the plaintiff, should be made ex parte, and that no such order should be made, until the Court is satisfied that the infant has been duly served, and that there has been an opportunity for making an application on behalf of the infant. But, though not without much hesitation, I have come to the conclusion that the fact of the order having been made ex parte, and having been made before service of summons, is not necessarily fatal; but that those defects fall within the terms of Section 578. I have arrived at this conclusion substantially for the reasons stated by Mitter, J.
21. The question as to service of summons is one of some difficulty. There are no special provisions as to the service of smmons upon infants, and therefore the same rules appear to apply as in the case of adults. There should be personal service under Section 75 of the Procedure Code, or service in some of the ways provided in the following Sections, if the circumstances are such as to render any of those Sections applicable, or failing service in these ways, there should be an order under Section 82, directing the mode in which service is to be effected. I should hesitate to say that service on a guardian ad litem is good service under the Code. But if the appointment of the guardian, however irregular, was not a nullity, it follows, I think, that the guardian had power to waive, and by appearing and defending did waive, all objections arising from want of service or defect in the service of summons. At the same time I think it right to say that in my opinion such a procedure as has been adopted in this case is liable to lead to the gravest consequences. It is not generally very difficult to make out a plausible case on affidavit, when there is no fear of cross-examination and no chance of contradiction, and the Judge has nothing but the Affidavit itself to look to. And under this procedure it would be quite possible that a plaintiff might succeed in making the Court believe, at the time he presented his plaint, that his own nominee was a fit guardian for an infant defendant, and might then carry on the litigation to the and, without the infant or any one really interested in his welfare ever hearing of it.
22. In the particular case before us, I think it is fairly clear that the interests of the infant were as well protected as if the proceedings had all been in order. I therefore concur in answering the questions referred to us in the negative.
23. In this case Jugut Chunder Deb sued several defendants for possession of land. The second defendant was described in the plaint as Nitobashini Chowdhrain, guardian on behalf of her own minor son, Suresh Chundra Wum Chowdhry. The third defendant was described as Ichhamoyi Chowdhrain, widow of the late Earn Cumar Wum Chowdhry. On the back of the plaint there is an order directing plaintiff to produce an affidavit to show that Nitobashini was the guardian of Suresh Chunder Wum Chowdhry. On the 14th of May an affidavit was filed, in which it was stated that the lady had charge of the minor as guardian, and that her interest was in no way hostile to his. On the 15th the Judge, having before him both the plaint and the affidavit, directed that the plaint should be registered, the defendants summoned, and the 18th June fixed for the hearing of the case. On the 22nd May summons was issued against the defendants as they were described in the plaint, and subsequently the Nazir made a return that the defendants Nos. 2 and 3 being purdanashin ladies did not appear, and therefore he affixed the summons to their house. The case proceeded on this footing to trial, and now it is contended in appeal that the minor is not bound by the suit.
24. After a plaint has been filed, the first duty of the Court is, under Section 64 of the Code of Civil Procedure, to issue a summons, calling on the defendant to appear and answer the claims on a day specified therein, either in person or by pleader duly instructed, or accompanied by some person able to answer all material questions. The only exception to this rule is where the defendant appears on the presentation of the plaint, and admits the plaintiff's claim. Consequently it appears to me that the duty of the Judge on receiving the plaint was to issue a summons on the defendant. If the defendant was the minor, he should have been summoned. If the defendant was Nitobashini alone, she should have been summoned. From the return it appears that the lady was treated as a party in the case, for the Nazir reported that because she was a purdanashin she could not be served. No summons was issued or served on the minor defendant. Subsequent to the issue of summons, the Court must, in the case of a minor, proceed under Section 443 to satisfy itself of the fact of minority; and when it is so satisfied, to appoint a proper person as guardian to put in a defence.
25. In this case the Judge issued no summons on the defendant, minor; came to no finding that he was a minor; made no order appointing the lady his guardian, but contented himself by directing that summons should issue on the defendants. It thus seems that in no one single respect has the first Court complied with the provisions of the Procedure Code. The minor had no notice of the action. The case was allowed to go on against him without any decision as to whether he was a minor or not, and he had no voice in the determination of whether he was a minor, or whether the lady was a proper guardian for him.
26. One of the elementary rules of pleading is that no decree or order finally deciding a question between parties should be made absolute, ex parte, without previous notice to the party affected by it. In the case of Ferguson v. Mahon 11 A. and E. 179 Lord Denman, C.J., refused to recognize a decree of the Irish Court of Common Pleas, on the ground that the defendant had no notice of the action. In that case the defendant pleaded 'that he was not at any time arrested upon, or served with, any process issuing out of the said Court of Common Pleas in Ireland' * * * 'nor did he, defendant, at any time appear in the said Court to answer the plaintiff in the said action,' and Lord Danman held that the judgment appearing to have been obtained behind the back of the defendant, it could not be made the foundation of an action in England. In Buchanan v. Bucker 1 Camp 62 Lord Ellenborough, C.J., said : 'It was contrary to the first principles of reason and justice that in either Civil or Criminal proceedings a man should be condemned before he was heard, and further that if such a practice were passed, it was an evil practice, and could not be sanctioned.' This opinion though subsequently modified in regard to artificial modes of citation, seems, so far as the question of no notice is concerned, to be the present law. The doctrine, therefore, that a decree against a parson in a cause, who has never been summoned and has had no opportunity to defend himself, is not binding on him, does not rest upon any technical pleas or rules of English pleading, but, as it is put in the different decisions, upon the ground that it is opposed to natural justice. If that be so, it appears to me impossible to say that the Subordinate Judge, by allowing the case to be carried on, without determining the status of the so-called minor defendant, without ever hearing him or giving him notice of the claim, and thus acting in contravention of the clear spirit of the Code could have passed any order or decree that would bind the minor.
27. It may be urged that under Section 453 an application may be made ex parte, and there is nothing in the Code prohibiting the Court from deciding that a person is a minor without giving him notice to show cause. Section 443 declares that the Court shall be satisfied of the fact of the minority, and I take it that the Court is to be satisfied of that fact in the way in which it is to be satisfied with regard to other questions that may arise in the case and is governed by the ordinary Procedure. In other words, before the Court comes to a decision ex parte on any such question, it must, in the words of Section 100, be 'proved that the summons was duly served,' and it lies upon those who contend that the procedure which may be followed under Section 453 is not the ordinary procedure of the Courts, but is a procedure which is declared by the Courts of England to be against natural justice, to show authority for it.
28. I am, therefore, of opinion that both on principles of justice and on the Procedure Code itself, no guardian should be assigned on the application of the plaintiff, unless it has been proved to the satisfaction of the Court that the defendant is a minor; that summons has been duly served on him; and that he has had notice of the application. It seems, therefore, to me impossible to support the decree of the lower Court, and I think that all proceedings against the minor, after the filing of the plaint, should be set aside, and the plaintiff should, if he wishes to proceed against the minor, do so by a new trial and in a regular manner.