AJI KUMAR Vs. NARAYANAN

JUDGEMENT

(1.) This Second Appeal is by defendant No.9 in a suit for recovery of possession of a building and for a permanent injunction restraining the defendants in the suit from . trespassing into the plaint schedule property, the easternmost portion of a larger extent. The claim for recovery of possession of the building was added by the plaintiffs by way of an amendment. Originally in the suit there were three defendants of whom the third defendant was the father of the appellant. Defendants 1 and 2 in the suit were set ex parte. The suit was filed on 18-6-1975. The third defendant filed his written statement on 13-2-1976 denying the title set up by the plaintiffs and claiming title in the land in himself. The plaint had proceeded on the footing that the building in the land was said to have been construed by the predecessor of the third defendant but that the third defendant had abandoned that property quite sometime back. In the written statement, the third defendant had inter alia raised a claim that he was a kudikidappukaran protected by the Kerala Land Reforms Act. The issue of kudikidappu was referred to the concerned Land Tribunal by the Trial Court in terms of S.125(3) of the Kerala Land Reforms Act The Land Tribunal returned a finding dated 28-4-1979 holding that the third defendant was not entitled to protection available to a kudikidappukaran under the Land Reforms Act. After the suit came back to the Trial Court, the third defendant died on 30-4-1983. Defendants 4 to 9 were impleaded in the suit as his legal representatives by order dated 20-9-1983. By order on I.A.No.2248 of 1983 defendant No.4 the mother of the appellant herein was appointed guardian of the appellant and his brother the additional 8th defendant who was also a minor. It is thereafter that the plaint was amended by the plaintiffs claiming recovery of the building. The application for amendment was filed on 24-2-1984 and the same was allowed on 26-6-1984. An additional written statement was filed by the 4th defendant questioning the right of the plaintiffs to recover the building. By judgment and decree dated 24-6-1985 the Trial Court decreed the suit restraining the defendants including the appellant from taking any income from the property or cutting or removing any trees from the property, and from doing any act against the ownership and possession of the plaintiffs over the plaint schedule property and also allowing the plaintiffs to recover possession of the building and the site thereof from defendants 4 to 9. None of the other defendants filed any appeal against the decree. But the 9th defendant in the suit who was a minor and who was represented by the guardian, his mother and who attained majority on 14-5-1987 during the summer vacation of the courts, filed an appeal on 23-5-1987, the date on which the courts reopened after the summer recess. He took the stand that since he had attained majority only during the summer recess and since the time for filing the appeal could not run against him while he was under a disability, the appeal filed on the reopening day was within the time. On behalf of the appellant, an attempt was made to rely on S.6 of the Limitation Act to contend that the appeal should be treated as having been filed within time. But subsequently the appellant filed I.A.No.524 of 1988 under S.5 of the Limitation Act praying that the delay in filing the appeal may be condoned and the appeal entertained. He put forward the contention that his mother, the guardian, was negligent in the conduct of the suit before the Trial Court and in not filing an appeal in time on his behalf and his disability ceased only on 14-5-1987 and hence the delay in filing the appeal caused by the negligence of the guardian may be condoned. This application was resisted by the plaintiffs who contended that the appellant was not the only legal representative of the deceased third defendant in the suit, that the appellant had only a claim in common with defendants 3 to 8 the other legal representatives of defendant No.3, that the other legal representatives had put forward the necessary contentions in the suit and that in that view the allegation of negligence against the guardian raised by the appellant is untenable and in any event the non filing of an appeal by the guardian could not be treated as negligence of the guardian. The lower appellate court found that the appellant had not made out sufficient grounds for condoning the delay and dismissed I.A.No.524 of 1988, the application for condoning the delay. As a result of the dismissal of that application, the lower appellate court dismissed the appeal as barred by time. It is this decision of the lower appellate court that is challenged in this Second Appeal by the 9th defendant.

(2.) Before the court below, on behalf of the appellant, a contention was raised that the appellant was entitled to exclusion of the time until the cessation of his minority in view of S.6 of the Limitation Act. S.6 of the Limitation Act specifically provides for exclusion of time due to the" disability of minority, insanity or idiocy only in the matter of institution of a suit or the making of an application. Though an argument was attempted on behalf of the appellant that the word suit would include an appeal as generally understood, the same was not pursued by the learned counsel for the appellant in view of the definition of suit contained in S.2(1) of the Limitation Act which provides that a suit does not include an appeal or an application. There was no argument before me that the context of S.6 of the Limitation Act requires the non adaptation of the definition of 'suit' contained in S.2(1) of the Act. If that be so, it is clear that S.6 could not ipso facto be applied to an appeal and the appellant could claim no exclusion of the period on the ground of minority in the matter of the filing of the appeal. That this is the correct position had been recognised as early as in the year 1890 in the decision of the Allahabad High Court reported in Bechi v. Ahsan-Ullah Khan (ILR 12 All. 461) in which speaking of S.7 of Limitation Act of 1877 which corresponded to S.6 of the Limitation Act of 1963, Justice Mahmood speaking for the Full Bench observed:

(3.) It appears to me that there is a reason behind the exclusion of the application of S.6 to appeals. When a suit is instituted, a guardian or next friend is appointed for a minor defendant or plaintiff by the court in terms of O.32 of the Code of Civil Procedure. The decree passed in the suit in the presence of guardian ad litem is binding on .the minor. At best it is only voidable and not void. (Even a compromise decree without leave of court is not void. See Bishundeo v. Seogeni Rai ( AIR 1951 SC 280 ), Savithri Anderjagam v. Valappad Nair Bank Ltd. ( 1957 KLJ 1157 ). Therefore it is clear that the guardian or next friend is in a position to act on behalf of the minor in fulfilment of his duty to the minor and in such a situation, there is no question of time for filing an appeal not running against a minor on the ground Of disability protected by S.6 of the Limitation Act as regards suits and applications by a minor. If no one approaches the court on behalf of a minor, the court will have no occasion to appoint a guardian for the minor, and it became necessary to give protection to the minor and to suspend the running of time until he was able to approach the court by himself by filing a suit or an application.