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Judgment
M.L. Bhat, J.—This appeal is directed against the judgment of Additional District Judge, Srinagar, dt. 16-11-1974. An application for
setting aside ex parte decree was dismissed by the trial Judge and this appeal is against the said order. It appears that one Dinaara Naquishband
was deputed by the Govt. of Jammu and Kashmir to study in the Women's Christian Medical College, Ludhiana, in the year 1941. She had to
study the course of Sub-Assistant Surgeon, and for this purpose she had executed a contract agreement with the State Government. She was paid
some money by way of stipend, hostel fee, dearness allowance etc. etc. The total fee paid to her was Rs. 7,407-7-00. Since she has not complied
with the terms of the agreement, therefore the suit was brought against her for the recovery of the said amount. She had migrated to Pakistan after
partition and she was set ex parte. One Ghulam Nabi Naquishbandi was her surety who had bound himself to refund the amount. Dinaara
Naquishband was proceeded ex parte but Ghulam Nabi Naquisband had died during the pendency of the suit and his legal representative were
brought on record. Among the legal representatives three daughters and one son were minors, who were shown under the guardianship of their
mother Rafiqa Begum. She refused to act as their guardian. Thereafter one Gias-ud-Din was appointed as their guardian. Mr. Gias-ud-Din during
the pendency of the suit had joined State Service and had appointed Mr. Mohd. Shafi as his counsel and he acted as such till the final disposal of
the case. The trial Court decree was passed on 22-7-1955. Thereafter application for setting aside ex parte decree was filed.
At one stage application for settingaside ex parte decree was dismissed and against that appeal had been taken to the High Court. The High
Court had remitted the case back with the direction that the trial Court should consider as to whether minors were effectively represented in the
suit or not. In case they were effectively represented then there was nothing"" wrong with the order of the trial Court. But in case they were not
effectively represented the decree against them was to be set aside.
The learned trial Court has discussed the entire evidence in the case and come to the conclusion that minors were effectively represented in the
Court till disposal of the lis. Therefore, there was no ground for setting aside the decree.
Before me Mr. Z. A. Qureshi contended that guardian ad litem could not appoint an advocate on his behalf once he ceases to be guardian,
Court was duty bound to appoint new guardian. He has contended that since Mr. Gias-ud-Din had joined State Service, therefore appointment of
a pleader by him on his behalf was bad and the trial Court was bound to appoint a fresh guardian for the minors.
I do not agree with Mr. Qureshi because Mr. Gias-ud-Din even after joining the service continued to be the guardian because there is no order
on the file indicating that he was at any time discharged as guardian-ad-litem. The guardian had the power and competence to appoint a lawyer on
his behalf. There is no bar in the CPC that a guardian cannot engage a counsel on his. behalf to protect the interests of the minors. Of course if it is
shown that such a lawyer has acted against the interests of the minors, then the Court will lean in favour of the minors. But in the absence of such
proof no restriction can be placed on the powers of the guardian to engage a lawyer to conduct the case of the minors. Minors as such were
effectively represented before the trial Court.
Another objection raised by him was that no notice was sent to the minors about the appointment of the guardian. The trial Court has rightly
rejected this argument and held this omission to be a mere irregularity. The minors were properly represented and decree was passed against them
on merits. Therefore, their remedy was not under Order 9, Rule 13, Civil P. C. The trial Court has rightly held that remedy of the minors was by
way of appeal and not by way of an application under Order 9, Rule 13, C. P. C. At no stage minors were proceeded ex parte nor can they be
deemed to have been proceeded ex parte.
Therefore, this contention of Mr. Qureshi is to be rejected.
This appeal was filed in 1975 and thereafter because of one reason or the other it could not be decided till now. However, learned Advocate
General was not present but the learned Chief Govt. Advocate appeared on his behalf. Therefore I heard the appellant in absence of the learned
Advocate General
Before parting with the case I would like to comment on the authorities cited by Mr. Zaffar Ahmad Qureshi in support of his submissions.
Om Prakash and Another Vs. Pt. Radhey Shyam Kathawachak and Others, lays down that the guardian appointed for a minor by the Court
cannot withdraw from guardianship without the permission of the Court. The minors are deemed to be under the special protection of the Court
and it is the duty of the Court to safeguard their interests. If the Court is satisfied that the guardian is not doing his duty, the Court may remove such
guardian and appoint another.
The principles laid down in this authority are not disputed. But in the present case the guardian after joining service had appointed a lawyer to
defend the minors and he had not misconducted in any manner. Therefore, this authority would not be applicable to the facts of the present case.
Samarendranath Mitra v. Pyareecharan Laha reported in AIR 1935 Cal 160 lays down when where certified guardian was appointed as
guardian-ad-litem, he would not cease to be guardian-ad-litem if he ceases to be certified guardian. This proposition is alien to the facts of the
present case and as such need not be commented upon.
11 Samarendranath Mitra and Others Vs. Pyareecharan Laha, also deals with some attributes of Order 32 CPC. It says that after filing the written
statement the guardian does not appear, interests of the minor being identical with the other defendants absence of guardian would not render the
decree a nullity against him. Guardian's failure to appear did not mean his failure to discharge his duty. It also lays down that Court can appoint
new guardian in place of previous one, in case of retirement, death or removal of previous guardian. However, if the guardian desires to retire,
Court may not permit him to retire. In the context of the present case, the proposition so laid down by the Pepsu High Court cannot be applied to
the facts of the present case.
Lalji Sah and Others Vs. Sat Narain Bhagat and Others, deals with the gross negligence of the guardian. It lays down that on the ground of
gross negligence minor can avoid the decree against him, but the negligence must be such which would lead to the loss of suit which if conducted
with due care must have been decided in a different way. In the present case there is no allegation as regards the gross misconduct of the guardian
or negligence of the guardian. On the other hand the guardian has been vigilant and has taken care to engage a lawyer on his behalf to conduct the
minor's case. Therefore there is no factual basis for application of the proposition of the aforesaid authority to the facts of the present case.
Bore Gowda v. B. Nagaraju, authority reported in AIR 1969 Mys 8 also deals with the negligence and misconduct of guardian and lays down
that where the guardian has committed gross negligence, decree passed against the minor can be avoided. This authority has no application to the
facts of the present case and therefore cannot help the appellants.
Section Gurcharan Singh v. Amar Singh reported in AIR 1972 P&H 194 also lays down effect of negligence of guardian. If the minor is
adversely affected by the compromise decree, he can avoid it on the ground of negligence on the part of the guardian. In that case compromise had
been affected to the detriment of the minor by the guardian without using due care and as such it was held that gross negligence of guardian could
be made basis for avoidance of the decree. The case in hand is not a case of that nature.
I have narrated the facts of the present case in brief in the foregoing paras of this judgment. Each case is to be decided on its own facts. No
hard and fast rule can be laid down. The trial Court has found as a matter of fact that minors were effectively represented and the finding is not in
any manner perverse, bad or without application of mind. Therefore, it cannot be held that decree passed against the minors was ex parte or it was
bad in any manner. It was a contested decree which could be avoided by filing an appeal. The appellants have chosen an erroneous remedy and
have laboured under some misconception. Besides being able to delay the proceedings, they have been able to some extent confuse the whole
issue.
There is no merit in this appeal and it deserves to be dismissed.
Accordingly the appeal is dismissed. However, there will be no order as to costs.