DEVARALINGA GOWDA AND Vs. PUTTASWAMY GOWDA

JUDGEMENT

(1.) The question to be considered is whether the appellants who are minors are disentitled to disposal of the appeal filed in the Court of the District Judge on merits as there was delay in filing it. The delay is undisputed and considerable. If the appellants were adults, I would have readily upheld the order, of the learned District Judge refusing to condone it. The appellants are children below the age of ten. They were impleaded as sons and legal representatives of Rame Gowda who died while the suit was pending in the trial Court and their mother was appointed as their guardian ad litem. The subject-matter of the suit was a garden valued at more than Rs. 3000 purchased by Rame Gowda from the father of the plaintiffs, The sale was impeached by the plaintiffs and their contention that the sale did not affect their shares in the property was allowed. It was against this decision that the appeal was filed by the widow of Rame Gowda on behalf of her sons.

(2.) The reason alleged for the delay is that she is an ignorant and illiterate woman, that she was depending upon Rame Gowda's father for the conduct of the litigation, that the father-in-law fell ill and owing to the illness the appeal could not be filed in time. She and her father-in-law both filed affidavits in support of this and a medical certificate was produced. Both have given evidence. The explanation offered has been disbelieved and found to be unsatisfactory with the result the application for the delay being excused and the appeal are both dismissed.

(3.) Sri Somanath Iyer learned counsel for appellants argued that considerations which ordinarily apply to laches of adults cannot be pressed against minors, that the dilatoriness of the guardian should be viewed with sympathy and indulgence as she is an illiterate woman, the heavy court-fee paid for the appeal is prima facie proof of her bona fides and earnestness and that having regard to the value of the property involved, the appeal should at least on terms be heard and decided, Sri Ramaswamy learned counsel for the respondent-plaintiffs objected to this on the ground that the right vested in respondents by the bar of limitation should not be taken away, that the order against the appellants is one passed in the exercise of discretion not liable to be interfered with, that the delay is enormous and not accounted for. In addition, he urged that the paternal uncles of the minors interested in the property have not challenged the decree of the trial Court passed against them and the minors and this is a circumstance against relaxing the rule of limitation normally applied. The case in -- 'Babu Ganesh v. Sitaram Martand', A I R 1916 Bom 153 (A) was relied upon for this. The facts arc somewhat different as in that case the two legal representatives who filed the appeal were not both minors. One was a major and besides him another adult was interested in the property. In this case both the appellants are minors and it is not clear whether the adult uncles are interested in the property as they are alleged in the plaint only to be persons cultivating the land.