Jager Nath and Others vs East Indian Railway Co. and Another

Kulwant Sahay, J.—There were three plaintiffs in the suit out of which the present appeal arises. The first plaintiff was Jagernath who was sui juris. The second plaintiff was Mahabir Prasad, minor son of one Dalsukh Rai and was represents ed by his father. The third plaintiff was Jhawar Mal, minor son of Mangtu Ram and he was also represented by his father. The suit was against the East Indian Railway Co., and B.B. and C.I. Railway Co., and another person for compensation for the loss of certain tins of ghee consigned to the Railway Companies for carriage to Giridih. The Munsif gave a modified decree to the plaintiffs. The East Indian Railway Co, one of the defendants in the suit, preferred an appeal before the Judicial Commissioner of Chota Nagpur. During the pendency of the appeal Mangtu Ram the guardian of the minor respondent in the lower Court, Jhawar Mal died, but no steps were taken to appoint another guardian to represent the minor. It is stated in an affidavit filed in this Court that Mangtu Ram died in September or October, 1924. The appeal, was decided by the learned Judicial Commissioner on the 16th March, 1925, whereby there decree of the Munsif was set aside and the suit was dismissed.

It is now contended on behalf of the plaintiff appellants that as no guardian was appointed for Jhawar Mal after the death of his father and guardian Mangtu Ram the appeal became incompetent and the decision of the learned Judicial Commissioner cannot stand. There is no denial of the fact-that Mangtu Ram died in September or October, 1924. The contention of the appellants is that the appeal abated because there was no appointment of a fresh guardian. On the other hand, it is contended that none of the respondents was dead, only the guardian of one of the minor respondents had died and the appeal did not abate and that all that was necessary under the law was to appoint a fresh guardian and that under Order XXXII, Ruled 10 and 11 the effect of not bringing on the record a fresh guardian of one of the minor respondents would be to stay, the hearing of the appeal until such appointment was made. I am of opinion that there was no abatement in the present case, but the decree of the learned Judicial Commissioner cannot stand as it was made in the absence of a guardian of one of the minor respondents. The decree of the Judicial Commissioner must, therefore, be vacated and the parties restored to the position in which they were at the time when the appeal was still pending and had pot been disposed of by the learned Judicial Commissioner, that is, on the date of the hearing of the appeal by the Judicial Commissioner. Under Order XXXII, Rule 11, the Court could not dispose of the appeal without the appointment of a new guardian. The result is that the decree of the learned Judicial Commissioner is set aside and the case is sent back to him for proceeding according to law. Costs will abide the result.

Macpherson, J.

I agree.