S ANANDA RAO Vs. VENKATADRI APPA RAO

JUDGEMENT

(1.) The only point argued in this second appeal is whether the plaintiff's claim is barred by res judicata by reason of the decision in S.A. No. 1240 of 1911, Exhibit V. Both the lower Courts have held that this decision is not binding on the plaintiff inasmuch as he was a minor at the time and his guardian, the Court of Wards, was guilty of negligence. Mr. Lakshmanna who appears for the respondent contends that it is not open to this Court to go behind their finding. But I am unable to accept that contention because the question whether there was negligence or such negligence as would vitiate the proceeding in a Court of Law is not only a question of fact but a question of mixed law and fact. "What is gross negligence is not merely a question of fact but one of mixed law and fact and therefore it is quite competent to the High Court in second appeal to go into the question to see whether there was gross negligence on the part of the minor's guardian in the conduct of the previous suit. The question in volved is as regards the rate of rent for a Baput wet land. The High Court, decided in 1911 in S.A. No. 1240 of 1911, vide Exhibit V, that the rent payable was not at the rate claimed but at a lower rate viz., Rs. 2-11-4. In the course of the judgment the learned Judges observe that the question of res judicata was raised but there was no clue as to the identity of the lands and the question of res judicata was not put in issue in the lower Courts. There was another decision of the High Court which is evidenced by Exhibit B-2 in which it was held that to plaintiff was entitled to a higher rate at the rate of Rs. 5. The question is whether the Court of Wards was grossly negligent in not acting upon Exhibit B-2 when the suit of 1807 which ultimately came up in S.A. No. 1240 of 1911 was filed. In the present case no evidence has been adduced to show that the manager under the Court of Wards was either negligent or that he did not conduct the case of 1907 with due care and diligence. All that is brought forward is that Exhibit B-2 was not relied on for the purpose of raising the plea of res judicata. We do not know under what circumstances the manager and these who helped him in the conduct of the suit did not rely upon Exhibit B-2 and did not raise the question of res judicata. The question was sought to be raised before the High Court, but the High Court found that the identity of the parties was not established and therefore the previous judgment could not he res judicata between the parties, and they also say : "The first Court states that the judgements relating to the previous suit give no clue to the identity of the lands." And they go on to say : "The Judge does not hold that the lands are the same and we have not been referred to any evidence to show that the lands are identical." And they modified the decree of the District Court by giving the plaintiff rent at the lower rate. Mr. Lakshmarma for the respondent contends that the facts appearing in evidence are sufficient to make out such negligence as would be sufficient to vitiate the proceeding in a Court of Law, and he relies upon Ponnayyah V/s. Viranna A.I.R. 1922 Mad. 273 in support of his contention. In that judgment there is an observation upon which he very strongly relies : "It must be such negligence as leads to the loss of a right which might have been successfully asserted if the suit had been defended with due care." This sentence taken from its context no doubt would lend colour to the contention of the learned Vakil. But we have to see under what circumstances that observation came to be made. Where a guardian omits to put forward a plea which he should have put forward or fails to defend the suit which he ought to have defended, no doubt he would be guilty of negligence. But where a suit is prosecuted with due diligence the mere fact that a certain document which might have helped the party was not filed in evidence is not by itself sufficient to show that there was gross negligence on the part of these who conducted the litigation on behalf of the minor. It is not every kind of negligence that would be a ground for relief in subsequent proceedings. It must be such nagligenoe as would be called gross negligence in law that is, such negligence as would imply that the person guilty of it neglected to do what was plainly his duty to do or did something which he ought not to have done or omitted to do something which any man of ordinary prudence would have done. There is no evidence in this case that any of the persons responsible for the conduct of the previous litigation were guilty of such negligence. Mr. Lakshmanna relied also upon Gotepati Subban V/s. Gotepati Narasamma . In that case Sankaran Nair, J. who was one of the Judges found that the guardian put forward a false case suppressing the true case knowing that by doing so he was endangering the right of the minor. He put forward a false claim under a false case of adoption knowing perfectly well that under a Will the minor was entitled to have half the property. It was held in that case that the guardian was guilty of gross negligence and that the proceedings in the suit could not bind the minor. The observation in Parmeswari Pershad Narayan Binyh V/s. Sheo Dutt Rai (1907) 6 C.L.J. 448 is very general. In every case the Court has to see whether the facts are sufficient to make out gross negligence on the part of the guardian. In this case there is no such evidence forthcoming, and therefore it cannot be said that the Court of Wards or their agent or the manager who was in charge of the estate of the minor plaintiff was guilty of gross negligence. Both the lower Courts have come to the conclusion that there was negligence merely on the fact that the previous judgment, Exhibit-B-2, was not relied upon in the suit of 1907. Both the Courts have gone wrong, and I have no hesitation in holding that there was not gross negligence or such negligence as would be sufficient to vitiate the proceedings in a Court of Law. That being so, Exhibit V is binding on the plaintiff as well as on the defendants.

(2.) Mr. Lakahmanna further contends that the plaintiff is entitled to ask for a share of the produce. But this contention was negatived in the previous suit ; for the learned Judges say : "If the plaintiff was entitled to revert to the vararn rate or claimed to revert to it and the higher rate was agreed to be paid in settlement of that claim, the contract would be supported by consideration. That was the case in some of the decisions referred to by the Judge. But these are not the faota here. And following these decisions we hold that the patta must be modified by disallowing the rate of Rs. 5 and inserting the lower rate." The questions now raised were actually raised and decided in the previous suit, and therefore the plaintiff is not entitled to re-open them.

(3.) In the result the appeal is allowed so far as the 6 appellant is concerned who is the only person who is now supporting the appeal ; and the decrees of the lower Courts would be modified by inserting Rs. 2-11-4 instead of Rs. 5. 6th appellant is entitled to proportionate costs throughout.