MANORANJAN SAMANTA KUMAR Vs. BRUNDABATI VEERGAM

JUDGEMENT

(1.) BRUNDABATI (defendant-opposite party) is the widow of the maternal uncle of manoranjan (plaintiff-petitioner ). Brundabati filed an application under Section 488, Cr. P. C. on behalf of her minor son alleging that the latter was born to her through the petitioner. The parties are Indian Christians. In Criminal Revision No. 493 of 1962, this Court allowed the application under Section 488, Cr. P. C. and directed the petitioner to pay every month a sum of Rs. 20 to the opposite party for the maintenance of the minor son. Title Suit No. 24 of 1964 was filed by the petitioner in the Court of the First munsif, Cuttack, for a declarati on that the petitioner is not the father of brundabati's illegitimate son and that the minor is not entitled to recover any maintenance. Brundabati was arrayed as a defendant with the description "for herself and as representing her alleged illegitimate minor son". Thus though the name of the minor son was not given in the cause title, both Brundabati and her minor son through her as the guardian, were impleaded as parties. Notice of the suit was served on Brundabati who did not file the written statement in time. On 10-9-64 the petitioner filed an application for appointment of the defendant as guardian of the minor. On 10-11-64 the opposite party took no steps and was set ex parte being absent on call. Petitioner's application for appointment of the defendant as guardian for the minor son was put up on 16-11-64. As the plaintiff absented himself on that day, the suit was dismissed for default. It was, however, restored to file on 17-12-64. On 18-12-64 plaintiff was directed to take notice to the defendant regarding settlement of issues. As the plaintiff took no steps, he was again directed to take notice on 22-12-64. On 4-1-65 plaintiff filed a memo that the suit be posted for ex parte hearing by dispensing with notice to the defendant. The notice was dispensed with on that day and the suit was posted for ex parte hearing to 19-1-65. The suit was decreed ex parte on 5-2-65. On 11-8-65 notice regarding cancellation of the order decreeing maintenance under Section 488 Cr. P. C. was served on the defendant. On 14-8-65 the application for setting aside the ex parte decree was filed by the opposite party. It was dismissed by the munsif on 7-4-66 as being barred by limitation. On 15-2-67 the District Judge reversed the judgment of the Munsif and remanded the case to him with an order that the application filed before him at the appellate stage to condone delay under section 5 of the Limitation Act would be considered by the trial Court. Against the order of District Judge remanding the case, the civil revision has been filed by the plaintiff.

(2.) MR. Mohapatra very seriously contended that an application to condone delay under Section 5 of the Limitation Act should not have been entertained at the appellate stage and that the application under Order 9, Rule 13, C. P. C. filed by brundabati was barred by limitation as summons had been served on her and she did not file the application within 30 days from the date of the ex parte decree. It is not necessary to consider this argument in view of what is going to be stated hereunder which was overlooked by the Courts below who exercised their jurisdiction illegally.

(3.) AS would appear from the narration of facts already given, the minor was impleaded as a party defendant in the suit through her mother as the guardian though his name was not mentioned. If Brundabati failed to appear in the suit, it was the bounden duty of the Court to direct the plaintiff to appoint a Court-guardian to conduct the suit on behalf of the minor. Order 32, Rule 11 (1) lays down that where the guardian for the suit desires to retire, or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit. Sub-rule (2) thereof says that where the guardian for the suit retires, dies or is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place. As Brundabati did not appear the suit could be rightly decreed ex parte against her; but the suit would not proceed against the minor through Brundabati as guardian when she neglected to do her duty. In the circumstances, the Court should have directed the plaintiff to appoint a Court guardian. The suit was, therefore, decreed ex parte against the minor represented through Brundabati in violation of the mandatory provision. The decree against the minor is a nullity and must be ignored by the Court. The suit must proceed from the stage where it became ex parte against the minor and the plaintiff would be directed to take steps for appointment of a guardian for the minor. The ex parte decree against brundabati as representing the minor cannot stand and must be set aside.