VIJAY KUMAR Vs. MADHAVRAO

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff from the concurrent judgments of the lower Courts dismissing his suit for the setting aside of the ex -parte decree in the earlier suit No. 332 of 1950 against his father and subsequently after his death, against the legal representatives including himself. The grounds averred are that the plaintiff was not noticed as a minor, there was no order appointing a guardian, and the mother -natural guardian has also not been noticed. In spite of the destruction of the nonpermanent papers of the file of the old suit, the broad facts are ascertainable and are mostly common ground. The real questions are firstly, whether in the circumstances of the case the irregularities in regard to the notices and representation of the minor legal representative and the appointment of the guardian, are cured by the fact that somebody (apparently at the instance of his major brother) did at some stage represent him. Secondly, whether the second suit itself is maintainable because an application of this plaintiff (through the natural guardian) under Order 9, Rule 13 had been dismissed.

(2.) THE facts of the case are the following: suit No. 332 of 1950 had been filed against the appellant's father Gopalrao who died after putting in the written statement. It is obviously unnecessary to set out in detail the pleadings on either side except to not that the stake was considerable and further. Gopalrao did actually make quits a number of averments in defence. After his death, the plaintiff sought to bring on record his legal representative, namely, widow Yamunabai, the major son Ramchandrarao and the younger son plaintiff here -who at that time was a minor. There was the usual notice for showing cause against substitution. But anyway the substitution was made. There was no notice on the minor as such, and the notice the mother as a legal representative was not actually served on her but was accepted by Ramchandrarao the adult son; as a ground of attack on the ex -parte decree this is of no avail and can be dismissed with tare mention even here because, for one thing, the notice on the widow of Gopalrao should be deemed to have been properly served as an adult male member living in the house with her was quite competent to receive it; and for another it does appear, further, that she was represented after substitution. But there was no order appointing a guardian to the minor under Order 32, Rule 3 (ii), nor was there any notice to the mother as the natural guardian as required by Order 32 Rule 3 (iv) Civil Procedure Code.

(3.) BOTH the lower Courts have taken the view firstly, that the defects in the notices and the representation of the minor were cured by the fact that there was appearance on behalf of the minor and representation by lawyer after the substitution; at later stages there was no representation but that is no legal defect. The fact is that this came under the principle the Privy Council laid down in Valian Vs. Banke Behari pershad Singh, (ILR 30 Cal. 1021), holding that the defects notwithstanding, the exparte decree could not be set aside. Secondly, the Courts found that as a fact, the minor was a party to the suit. If he was, the appropriate course for him was to go up under Order 9 rule 13 and not bring a separate suit. Actually, he did so and only when that application was dismissed, did he bring the present suit which in these circumstances was not maintainable.