MST. KAMALA NANDIANI Vs. RAGHUNATH SANDHA AND ORS.

JUDGEMENT

(1.) THIS application in revision is against an order dated 6 -1 -1968 setting aside an ex parte decree passed against the opposite parties. The Petitioner as Plaintiff brought Title Suit No. 45 of 1966 on the basis of a registered mortgage bond executed by opp. party No. 1 as Karta of the joint family consisting of himself, his son opp. party No. 2, and his wife opp. party No. 3. Opp. party No. 2 being a minor was represented in the Suit by his father and natural guardian opp. party No. 1. Opp. party No. 1 for self and as guardian for his minor son filed a written statement, the plea taken being essentially a plea of payment. This written statement was adopted by opp. party No. 3. The suit was fixed for hearing to 23 -8 -1967. As the opp. parties remained absent an ex parte decree was passed against them. Thereafter, an application under Order 9, Rule 13, Code of Civil Procedure was filed by opp. party No. 1 on behalf of himself and his minor son, opp. party No. 2. Opp. party No. 3 has also joined in the application. The plea taken was that on the date of hearing opp. party No. 1 fen ill and his wife opp. party no 3 who is a purdanashin lady had to stay away at home to attend on her ailing husband. At the hearing of the application, no evidence was adduced on behalf of the opp. parties. The Petitioner, however, examined the Head Assistant of the Malaria Office, Sambalpur, where opp. party No. 1 works as a peon, to prove that the Latter attended office on the date of hearing. On this evidence, the learned Munsif held that the plea of illness of opp. party No. 1 was false. He felt that in the circumstances, opp. parties 1 and 3 would not have been normally entitled to any relief, but so far as the minor opp. party No. 2 is concerned, the learned Munsif thought that the negligence of his guardian in not attending the Court on the date of hearing constitutes "sufficient cause" within the meaning of Order 9, Rule 13, Code of Civil Procedure, and that consequently so far as the minor opp. party No. 2 is concerned, the ex parte decree passed against him should be set aside. But the learned Munsif, feeling that the ex parte decree cannot be set aside against the minor alone lest it may lead to inconsistent decrees in future, set aside the ex parte decree passed against all the opp. parties. The correctness of this order is challenged in this proceeding.

(2.) ORDER 9, Rule 13 runs thus:

(3.) WE would lastly refer to a Benoh decision of the Madras High Court in Minor Vaithilinga Naidu v. Devanai Ammal and Anr. : A.I.R. 1949 Mad. 46. The Plaintiffs who were minors through their paternal uncle as next friend 'brought a suit for a declaration that a Court sale of their house was not binding on them. On the date fixed for trial of the suit, the guardian was absent from Court and he had also not taken any steps to get ready for hearing of the suit on that date. Consequently the suit was dismissed for default. An application under Order 9, Rule 9, Code of Civil Procedure was filed to set aside that order and the trial Court held that there was no sufficient cause for the non -appearance of the Plaintiffs on the date of hearing and dismissed the application. On appeal, the High Court agreed with the finding arrived at by the trial Court. It was, however, argued on behalf of the minor Appellants that on the assumption that the next friend was negligent in so far as he failed to take any steps for hearing of the suit still the suit must be restored to file, as such negligence itself would be sufficient cause within the meaning of Order 9, Rule 9, Code of Civil Procedure. The argument was that where the Plaintiff is a minor and cannot consequently appear himself without a next friend, the negligence of the next friend must be regarded as sufficient cause for the Plaintiff 's non -appearance within the meaning of the rule and that otherwise the interests of the minor Plaintiff would be seriously jeopardised. The High Court rejected this contention being of the view that acceptance of such an argument would be that in every case where the Plaintiff is a minor the suit must be restored ipso facto and indeed there would be no purpose in or justification for dismissing such a suit because on this line of reasoning, in no conceivable contingency can be dismissal be maintained. After an exhaustive discussion of the case law on the subject, and a review of the previous decisions of that Court, their Lordships held that.