BAI DAHI Vs. SHANKARBHAI DEOJIBHAI

JUDGEMENT

(1.) THE petitioners before me are minors and they filed the suit, being suit No. 216 of 1945-46, by their next friend, the mother in the Court of the Second Joint Civil Judge, Junior Division, Baroda. The suit was dismissed for default and an application was made to set aside the order of dismissal. The trial court dismissed the application, and In appeal the learned Assistant Judge has confirmed the order of the trial Court. The minors have now come in revision.

(2.) NOW, it has been found as a fact that the mother was grossly negligent in the conduct of the suit. The suit was really attended to by the father and both the father and the mother tried to throw the blame upon a senior practitioner of the Baroda High Court, Mr. Shroff, saying that he did not attend to the matter. But Mr. Shroff has given evidence and has been believed that he informed Dalsukh, the father, from time to time of the various dates to which the suit had been adjourned, but Dalsukh never cared to appear in Court. The learned trial Judge actually adjourned the suit eight times before he ultimately dismissed it for default, and really on merits the case is as bad as any case can be. But what Mr. Gokhale argues, and with some force, is that the plaintiffs are the minors and not the next friend or the father of the minors, and, therefore, the negligence of the next friend should not be visit-ed upon the heads of the children. The argument put that way is very attractive and Mr. Gokhale says that in every case where a minor's suit is dismissed for negligence of the next friend, the negligence by itself should constitute sufficient cause within the meaning of Order IX, Rule 9. The Madras High Court at one time took the Same view, but in a recent judgment reported in -- 'vaithiljnga Naidu v. Pevansi Animal', AIR 1946 Mad 46 (A), a division bench of the Madras High court has carefully considered the matter and has pointed out what the consequences would be if the Court were to take the view that the negligence of the next friend of a minor should invariably constitute sufficient cause and a suit dismissed for such negligence should be almost automatically restored. The Madras High Court points out that it would mean that the Court would lose all control over minors' suits, that it would give a great impetus to frivolous and vexatious suits, and that a defendant would have a frivolous suit filed by the minor hanging above his head for years and years at times. Further, there are more serious difficulties which have been pointed out that if some property of the defendant was involved, so long as the suit continued the doctrine of 'lis pendens' would apply to that property and the defendant may find it difficult to transfer that property. In my opinion, the later view of the Madras High Court is the sound and the correct view. On the other hand, as I said, there is force in what Mr. Gokhale says that something should be done to protect the interests of the minors. It seems rather difficult that minors, who have no voice in the matter and who are to be protected in law by a next friend being appointed to look after their interests, should suffer by reason of the fact that those very persons appointed to look after their interests should be negligent and should be lacking in their duty towards their wards. The Court, in cases where minors are concerned, should be reluctant to dismiss a suit for default. In tills matter the learned trial Judge acted perfectly correctly in granting as many as eight adjournments because he felt that minors were involved. Further, the Madras High Court has also pointed out that where the Court is satisfied that the next friend is negligent, he should be removed and another one should be appointed, and Mr. Gokhale asks me to do the same in this case. With respect to the Madras High Court, the learned Judges have overlooked one difficulty in the removal of a next friend. Under Order XXXII, Rule 9, the next friend can only be removed on an application made on behalf of the minor or on behalf of the defendant. Under that rule the Court cannot act 'suo motu', and therefore, however negligent the next friend may be, unless some application is made to the Court, the Court cannot remove the next friend. In this case the minors' interests were not protected by some stranger. They were being looked after by their own mother and the evidence is that the mother had entrusted the work of looking after this litigation to her_ husband. Therefore it is difficult to believe that anybody else would be more interested in the minors than their own parents.

(3.) I should suggest a third way by which the interests of the minors should be protected. The Court has undoubtedly, as pointed out by Mr. Gokhale, very wide powers to restore suits independently of Order IX, Rule 9. The Court has got power to act under Section 151 and the Court should be quicker to act under Section 151 where a minor's suit is dismissed, and Mr. Gokhale says that in this case I should restore the suit under Section 151. Now, if I felt that there was something to be said on merits in this suit, I might have stretched a point in favour of the minors and restored the suit. But I am satisfied from what Mr. Karlekar has told me that this minors' suit is the usual type of suit which is filed by the parents, viz. , frivolous and vexatious. That seems to be the very reason why the next friend has never been anxious to prosecute the suit. As a matter of fact, the suit was heard once and dismissed and in appeal it was remanded to the trial Court on some technical ground. I am not at all satisfied that the interests of the minors will be served by restoring to the file a suit which 'prima facie' seems to be frivolous and vexatious.