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Rasik Moral Minor by His Next Friend Sashi Bhusan Mandal Vs. Kumar Jyotish Kantha Roy - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1106,97Ind.Cas.614
AppellantRasik Moral Minor by His Next Friend Sashi Bhusan Mandal
RespondentKumar Jyotish Kantha Roy
Cases ReferredJatindra Mohan Poddar v. Srinath Roy
Excerpt:
minor - guardian ad litem, notice on, if sufficient--minor, if should be served in person. - .....that in a case where there has been a guardian ad litem appointed by the court on behalf of the minor, service of notice must be not on the guardian ad litem but on the minor himself. for, it is quite obvious that the language of the code does not admit that there should be service on both these persons. i do not think, therefore, that processes should be served on the minor and not on the guardian ad litem, the person in whose hand the conduct of the case is. it would be obviously absurd to serve notice on a child of, say, six months old, yet, if mr. sen's contention had any substance in it a child of six months old is the proper person to be served with notice and not any guardian ai litem i think this is sufficient to dispose of the appeal.3. mr. sen. has drawn our attention to one.....
Judgment:

Cuming, J.

1. This is an appeal against an order of the learned Additional District Judge of Khulna rejecting an application for re hearing of an appeal under Order XLI, Rule 21, C.P.C. It would appear that the present petitioner and his brothers were respondents in a certain appeal, the petitioner who was a minor being represented in the appeal by a guardian ad litem appointed by the Court. The appeal was duly heard and was decreed against the respondents. The present petitioner then moved the Court and asked that the appeal should be re-heard on the ground that no notice had been served upon him, the petitioner. The learned Judge has found and the fact has not been controverted that notice was duly served upon the guardian ad litem of the petitioner in the case, and he, therefore, refused the application for re-hearing.

2. The petitioner, a minor, has appealed to this Court and Mr. Sen contends on his behalf that it is necessary that notice should be served not only on the guardian ad litem but also on the minor himself. What possibly could be the object in serving notice on a minor, Mr. Sen has not explained to us. His main contention is that the Code provides that notice must be served on the respondent in person. He contends that by the words 'on the respondent in person' are meant 'on the minor in person.' Therefore, it is necessary to serve notice personally on the minor. No doubt the Code uses the expression 'on the defendant in person.' But I do not think it means that in a case where there has been a guardian ad litem appointed by the Court on behalf of the minor, service of notice must be not on the guardian ad litem but on the minor himself. For, it is quite obvious that the language of the Code does not admit that there should be service on both these persons. I do not think, therefore, that processes should be served on the minor and not on the guardian ad litem, the person in whose hand the conduct of the case is. It would be obviously absurd to serve notice on a child of, say, six months old, yet, if Mr. Sen's contention had any substance in it a child of six months old is the proper person to be served with notice and not any guardian ai litem I think this is sufficient to dispose of the appeal.

3. Mr. Sen. has drawn our attention to one decision of this Court in support of his contention. It is the case of Suresh, Chunder Wum Chowdhry v. Jagut Chunder Deb 14 C. 201 : 7 Ind. Dec. (N.S.) 135 (F.B ). Mr. Sen has drawn our attention to page 215 Page of 14 C.--[Ed.]. There the learned Judge Mr. Justice Wilson remarked: 'I should hesitate to say that service on a guardian ad litem is good service under the Code.' With great respect to the learned Judge I may point out that this particular point, namely, whether service on a guardian aid litem was good service was apparently not one of the points on which the appeal before the learned Judge turned. Therefore, this remark must be taken as being an obiter dictum. But the learned Judge, however, went on to say: '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.' Now it appears that in this case the guardian ad litem did appear and, therefore, by appearing waived all objections which might have arisen from want of service or defect in the service of summons. The finding of the learned Judge, I think, is correct and the service of summons on the guardian ad litem is good service for the purpose of the appeal.

4. The appeal must, therefore, be dismissed with costs. Hearing-fee three gold mohurs.

Page, J.

5. I agree. The observation of Maclean, C.J., and Banerji, J., in Jatindra Mohan Poddar v. Srinath Roy 25 C. 267 : 3 C.W.N. 261 : 13 Ind. Dec. (N.S.) 775 would appear to support the view we take.


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