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Judgment
Bhimasankaran, J.—This is an appeal by Plaintiffs 7 and 8 in O.S. No. 42 of 1943 on the file of the Subordinate Judge''s Court, Vijayawada, against an order refusing to she aside a prior order of dismissal of the suit so far as they are concerned.
The Appellants were added as supplemental Plaintiffs in their capacity as the legal representatives of the original 6th Plaintiff who died sometime after the suit was filed. They are the minor son and wife Respectively of the deceased the suit was dismissed. The Plaintiff The present Appellants alone filed I. A. No. 292 of 1948 for restoration of the suit so far as they are concerned. It was alleged in the affidavit filed in support of the petition that the suit was being conducted on their behalf by Plaintiffs 2 to 5, who are the paternal uncles of the. 7th Plaintiff/and instead of doing so, they acted in collusion with the other side and did not attend to their suit. It was further alleged that the 8th Plaintiff sent her mother to appear before the Court on her behalf, but tire W could not attend in time as she failed to ob-allocation in a bus which would have behalf her there Oral evidence also was tendered on Appellants.
The mother of the 8th Plaintiff deposed conducting the her son-in-law''s of the Plaintiff ''that he was expected to do so even On tire 9th December 1947, that he failed to do so because of collusion with the Defendants, that she herself wanted to appear for her daughter, but was unable to be present in Court as she had missed the bus, and that she could reach the Court only alter the dismissal of the suit. The learned Subordinate Judge refused to believe P. W. 1. He was of the opinion that the Petitioners deliberately stayed away from Court, and that the suit was deliberately allowed to be dismissed for default. He found that there was no satisfactory proof of sufficient cause for non-appearance and dismissed the petition. The present appeal is against that order.
It is to be noted that one of the Appellants is a minor. When a question arises as to whether a minor has been prevented by sufficient cause from appearing in a suit, it has to be determined with reference to the conduct of the next friend of the minor. Now the non-appearance of the guardian (which term will hereafter include a next friend in, the following discussion) may be due to accident, design or negligence. Where it is the result of accident the absence of the guardian will, of course, be treated as sufficient cause for the non-appearance of the minor. The guardian and the minor are treated as one, and the dismissal for default or the ex prate decree will in consequence be set aside. The nonappearance may on the other hand be deliberate and designed. Such willful absence may be due either to the guardian acting in collusion with the opposite party and against the interests of his ward or to his acting in the interests of the minor and or in the interests of other parties to the litigation. If the Court is satisfied that the next friend had betrayed his trust, it will of course, set aside the decree, or dismissal, appoint a 1''rCsh guardian and proceed with the suit. If, on the other hand, it is clear that the absence was inspired purely by dilatory tactics designed in the supposed interests of the minor, the Court will let the order or decree stand.
There may be instances where though the minor himself has a good prima facie ease, he is being used as a tool to help Ors. to protract the proceedings; then it may be, the Court will protect the interests of the minor by appropriate orders, while at the same time taking" suitable measures to prevent the adoption of such a mischievous stratagem. Instances are1 also conceivable where the guardian absents him that the morns has no case at all here again are expiate decree, or the dismissal for default will stand. The. third reason for the absence of the guardian may be his indifference or recklessness. In our opinion, where; I ho Court is satisfied that the .guardian has in. not making his appearance neglected his duty to his ward as well as to the Court, it is incumbent upon the Court to protect the interests of the minor from the consequences of such negligence. The suit must be restored or the exporter decree set aside, and a fresh, guardian or next friend appointed-If the relations and friends of the minor do no put the next friend in possession of sufficient funds j� they may not be inclined to do if it is to interests that the litigation should be prolong nesses the opposite party is not willing to advasn do out of a sary funds-as in some case it mien of course desire to terminate the litigation.
the Court may be in a difficult position. But in passing a fresh order for dismissal, it may put on record the circumstances in with it was constrained to take such a step. In any suit that may be filed by the minor after he attains majority disputing the binding nature of the prior proceedings on him, the remarks of the Court so recorded may help the Court deciding the subsequent suit in the determination of the question as to the guardian''s negligence in the prior litigation.
It seems to us that the above propositions emerge from the cases cited at the bar. The earliest case to which reference may be usefully made is that in Kesho Pershad v. Hirday Narain, 6 Cal LR 69 (A). In that case, the 1st Defendant, the mother, appearing personally and as guardian of her minor sons allowed an ex parte decree to be passed. An application was made on behalf of the minors to set aside the ex parte decree on the ground that summons was not duly served. But this ground was not established. The learned Judges held nonetheless that the ex parte decree could be set aside on the alternative ground that there was sufficient cause for the non-appearance of the minor Defendants, and in doing so, they made the following observations:
We think that we may legally and fairly deal with this matter as regards the minors under the clause which provides that if the Defendant be prevented by any sufficient cause from appearing when the suit was called on for hearing the Court should pass an order to set aside the judgment. It is not to be expected that the Defendants themselves could have appeared in person and they had a right to expect that their lawful guardian would take the pro-per, and what in this case was obviously a necessary, step to protect their interests. By a neglect of duty for which they are not in any way responsible no one appeared on their behalf when the case was called on. We think it would be contrary to justice to hold that they are responsible for their non-appearance. We think they have a right to say, in the words of the Act, that they have been prevented by sufficient cause from, appearing when the case was called on. That being so, whether the summons was served or not, the Court below had power to set aside these decrees.
The principle of this case was approved in the Madras High Court as early as the decision in Neelaveni v. Narayan''a Reddi, 37 Mad LJ 599 : ILR 43 Mad 94 inherent power toVt asidVan ex parte decree apart from the provisions of Order 9, 1 13, CPC Code. The Full Bench which dealt with the case overruled the contention that there was such power, and Mr. Justice rejecting the argument that such against setting aside of an parte decree passed against a minor by the f his guardian says thus:
A suggestion was made that the default of a goanna of a minor Defendant will not be covered, this Clause (the clause relating to sufficiency of cause). There is no reason for limiting the language of the clause in that way. Further, there is the authority of 6 Cal LR 69 (A), against this suggestion. Then again the observations in the Calcutta case were approved and followed by Curgenven J. in Kathasawmy Chettiar and Another Vs. Ramachandran and Another, (C), who cited them in extenso was support of the proposition that the default of a guardian who wrongfully allows a claim against the minor Defendant to be decreed ex prate constitutes sufficient cause for the non-appearance of the minor within the terms of Order 9, Rule 1.3, CPC Code.
A few months later, Beasley C.J., purporting to follow the decision of Curgenven J., in Kathasawmy Chettiar and Another Vs. Ramachandran and Another, (C) and 6 Cal LR 69 (A) observed as follows in Donthi Venkataratnam and Others Vs. Nagappa and Another, (D):
It appears to me therefore that the position in justice is that if there are minor Plaintiffs and Defendants who are represented as they must be by a next friend and the next friend is absent, through whatever cause it may be, at the trial, then that fact alone is sufficient reason for setting aside an ex parte decree passed against minor Defendants or for setting aside an order of dismissal of the suit in the case of minor Plaintiffs.
The learned Chief Justice referred to three possibilities, viz., that the guardian might have been ill, that she might have been negligent and that she might have been deliberately acting adversely to the minor''s interests. And he said that in any one of these cases, a minor should not be prejudiced. In a decision, to which he was a party soon alter i.e., Majeti Venkatasurya Subbarayudu Sowcar, being minor by mother and next friend Venkatasurya Satya Parvatamba now declared a major and the guardian discharged Vs. Majeti Bapannarao Sowcar and Others, at p. 567) (E), the learned Judge realised that these observations were too wide, when they were relied upon in support of a contention that whatever happens, whenever there is an absence of the next friend or guardian, the minor is entitled to have the case restored to the list or the ex parte decree set aside. Repelling that contention, the learned Chief Justice staled:
This would of course load to manifest injustice. Take for example, the case of an alienation made by a father of a joint Hindu family. The mortgagee 61es a suit making the father the 1st Defendant and the other members of the family the other Defendants. These other members of the family are very often represented by the lather or if not by somebody else and the father remains ex parte and an ex parte decree is passed against him. Colluding with the father the guardian of the minor is absent. If an ex parte decree is passed in the absence of the guardian, then it is liable to be set aside, because the minor was not represented at the trial; and such a decree is rightly set aside where the absence of the , guardian is bona fide; but the guardian cannot be permitted to go on absenting himself time after time. If such a thing as that were to be allowed, it would mean that an ex parte decree could never be passed against a minor during the minor''s minority. Every time the guardian was absent the minor would be able to say that he was not represented by his guardian and his guardian was absent through neglect, illness or otherwise. There must be some limitation Jo the rule stated in those cases and the limitation must be that, where it is shown that the guardian absents himself or herself deliberately in pursuance of a plan in order to obstruct a litigation, or the. absence is not bona fide, the minor cannot claim the benefit of these decisions.
It is difficult to sec what the learned Judge means when he refers to the absence of the guardian being bona fide. Where the absence is due to negligence, it can hardly be referred to as bona fide, and still according to his earlier ruling, the minor would be entitled to have the decree set aside. In the same volume i.e., ILR 58 Mad is Anr. decision of Curgenven, J., and King, J., at page 1045 Nookala Peda Satyam and Another, minor by Guardian Venkamma and Others Vs. Thummalapalli Krishnamurty, (F) King J., who delivered the judgment of the Court quoted the observations of Beasley C. J., in Venkatarathnam v. Nagappa (D) and (without referring to those in Subbarayudu v. Bapanna Rao (E) which was not and could not be brought to his notice, because it had not yet been reported) after referring to the three aforesaid possibilities to which a guardian''s absence may be due, remarks that a fourth possible explanation for non-appearance had not been considered by the learned Judge:
An explanation which no doubt would very rarely apply in the case of. a next friend of a Plaintiff whose change of attitude is itself prima facie indication of the negligence of the Plaintiff''s interests, but may well apply to the guardian of a minor Defendant.
He puts it thus:
.... It is this, that the minor Defendant has no case to put forward, and that his guardian realises this and, exercising his judgment honestly and deliberately and in the interest of the minor Defendant, decides that no good purpose can be served by putting in an appearance. In such circumstances, seems to me that the non-appearance of a guardian is not a "sufficient cause" within the meaning Order 9, Rule 13. A party can be said to be "prevented" from appearing only when he wishes to appear, and he wishes to appear only when he has some point o� view to press upon the Court''s attention. If he recognises the justice of the Plaintiff''s claim and is content to have a decree passed against him and for that reason fails to appear, he is in no sense prevented from appearing.
The next decision in point of time is that reported in Ramanathan v. Mayyappa Chettiar, 1937 1 Mad LJ 36: AIR 1936 Mad 961 (G) a decision their Lordships Mr. Justice Burn and Mr. Justice Lakshmana Rao. They say:
.... The mere absence of a guardian-ad-litem is not by itself a sufficient cause for allowing an application under Order 9, Rule 13, CPC . Vide Nookala Peda Satyam and Another, minor by Guardian Venkamma and Others Vs. Thummalapalli Krishnamurty, (F), where it is pointed out that a'' guardian-ad-litem may have perfectly good reason for refusing to put forward a defence on behalf of a minor. We may observe that there is Anr. class of cases, of which this appears to be ; an instance. It is quite possible for a guardian-ad item knowing that the minor has no defence to the suit, to protract and delay the proceedings by all the varied devices which are commonly practised.
The latest case on the point to which reference must be made is that reported in Vaithilinga Naidu, represented by next Friend, Subbammal and Another Vs. Devanai Ammal and Another, ) (H). It was argued in that case that where the Plaintiff is a minor and consequently cannot appear without a next friend, the negligence of the next friend on record must itself be regarded as sufficient cause for the Plaintiff''s non-appearance, and that in such a case the suit must be restored. The judgment of the Bench was delivered by Mr. Justice Govindaraja-chari. But unfortunately the decision in Nookala Peda Satyam and Another, minor by Guardian Venkamma and Others Vs. Thummalapalli Krishnamurty, (F) does not seem to have been cited before them. The learned Judge refer only to Majeti Venkatasurya Subbarayudu Sowcar, being minor by mother and next friend Venkatasurya Satya Parvatamba now declared a major and the guardian discharged Vs. Majeti Bapannarao Sowcar and Others, (G). After discussing some of the earlier cases, the learned Judge proceeds to observe that there is no doubt that the law is thus left in sonic uncertainty and he himself formulates the position in law in the following terms:
If the non-appearance of the next friend is bona fide or in other words for reasons which would be held to constitute sufficient cause if ho were conducting his own suit there is no controversy that Order 9, Rule 9 can be invoked on behalf of the minor Plaintiff. If the non-appearance of the next friend is face result of collusion between him and the Defendant or if the next: friend assumes, for whatever reason, an attitude of hostility against (lie minor Plaintiff and consequently refrains from appearing, there may be ''''sufficient cause" for the restoration of the suit.
Where a next friend is negligent or deliberately obstructive and the suit is dismissed for his nonappearance, there is, in our opinion, no sufficient cause for such non-appearance within the meaning of Order 9 Rule 9 and therefore no ground for restoration." The learned fudge proceeds to criticize the decisions in 6 Cal LR 69 (A) and Donthi Venkataratnam and Others Vs. Nagappa and Another, (D) as having stretched a point and construed the word "sufficient cause" so as to include also cases of negligence or obstruction on the part of the next friend or guardian-adulator. lie proceeds to say:
In our opinion, there is not only justification for such an extension, but there are also serious practical difficulties in the way of accepting an interpretation which would render the expression ''''sufficient cause" entirely meaningless as every non-appearance of a next friend or guardian-ad-litchi would, in that view, attract the operation of Order 9, Rule 9 or Order 9, Rule13.
The learned Judge failed to notice that 6 Cal LR 69 (A) had received the approval of a Bench in a decision binding upon him. We agreed with the learned Judge that the law on this point is in some state of confusion. But the propositions which we laid down above seem to us to consist with principle as well as authority. It may be: that some of the observations made in the several cases arc not to be completely reconciled. But in our opinion there is no such clear conflict among the decisions as to require their examination by a Full Bench. We shall content ourselves by saying that there, is sufficient authority in the decisions of the Madras High Court by which we are bound that a guardian may be betraying the interests of a minor by mere negligence and that in such eases the Court is bound not to visit the consequences of such negligence on the minor. We may observe that we are not impressed with some of the practical considerations noticed by Mr. Justice Govindarajaehari in ILR (1918) Mad 71 : AIR 1919 Mad 46 (II) but we are not disposed to share his alarmist view that
the Court would be reduced to a position of helplessness and could only look forward to maintain on its file several suits by minors, a substantial number of which are frivolous and speculative.
As he himself observed earlier in the decision, there is a difference between a minor Plaintiff and a minor Defendant, a distinction to which a passing reference was made by King J., also in the passage already cited from his decision. Where a suit is instituted on behalf of a minor, his estate is mulcted in expenditure for the institution, and it is very unlikely that an attempt will be made to keep it on file indefinitely merely with a view to harass die Defendant. In any case, as we pointed out above, where the Court is convinced that there is an endeavour to protract the litigation, Anr. next friend may be appointed; and it is always open to the Defendant to get rid of the litigation by advancing funds to the next friend, and if ho is ultimately successful he can reimburse himself from the estate of the minor. The Court may further dismiss the suit for default of appearance of a next friend appointed by Court if that happens because he is not in possession of*funds, and as stated above, make observations as to the circumstances in which it was compelled to pass such an order. In our opinion, a guardian''s failure to appear because of indifference or recklessness is repudiation of a duty east on lurh by law and as such should not be allowed to operate to the detriment of the person to whom that duty is owed.
Now coming to the facts of the case, tire learned Subordinate Judge in dismissing the application made no distinction between the case of the 7th and that of the 8th Plaintiff. He approached the consideration of the case without reference to the fact that so far as the 7th Plaintiff is concerned he was a minor and if the 8th Plaintiff his guardian (and next friend in the suit) did not appear the Court has to determine whether her default of appearance should result in the dismissal of the suit to the extent to which the 7th Plaintiff is interested therein. We are not prepared to differ from the learned Subordinate Judge in regard to his finding that there was no sufficient cause in so far as the 8th Plaintiff is concerned. We confirm the dismissal of the suit as against her. But we must reverse his order in so far as it relates to the 7th Plaintiff and remand the petition to the lower Court for fresh disposal in the light of- the observations contained in his judgment, As it appears to us that the point of view above stated was lost sight of by the parties as well as by the Court when the matter was before the learned Subordinate Judge we think, it proper that opportunity should be given to both the parties to adduce further evidence in support of their respective contentions .
The C.M.A. is allowed to the extent indicated above. We make no order as to costs in this appeal so far as the 8th Plaintiff is concerned. Her appeal is dismissed. But so far as the 7th Plaintiff''s concerned, the appeal is allowed, and we direct that his costs i.e., half the total amount of the costs of the appeal and the entire costs so far as the Respondent is concerned do abide and follow the result of the petition in the lower Court.
C.M.P. Nos. 248 of 1955 and 10880 of 1953: These C.M.P.''s have been filed for the purpose of admitting fresh evidence in appeal. For the reason that we are remanding the petitions to the lower Court for fresh hearing, it seems to us unnecessary to pass any orders on these petitions. The parties will be at liberty to tender this evidence in the lower Court.