MT LAIKUNNISSA Vs. DURGA DASS MUKHARJI

JUDGEMENT

(1.) The proprietors of the Maldwar estate sued the appellants, as defendants first party for ejectment from an area of 146 bighas odd in Tetiar The learned Munsif decreed the suit and the appellants appeal was dismissed. In second appeal they raise the point that the Court below had no jurisdiction to proceed with the suit by reason of Section 55, Court of Wards Act, 1879, which ordains that No suit shall be brought on behalf of any ward by a Manager, unless the same be authorised by some order of the Court (of Wards), it being alleged that there was no such authorisation by any order of the Court of Wards, which under Section 5 is the Board of Revenue, or of the Commissioner or the Collector to whom its powers, in this regard have been delegated under Section 15 of the Act. (In the suit which was valued at Rs. 55 only authorisation may under, such delegation come from the Collector). The point was not taken until the stage of argument in the lower appellate Court, and there is therefore nothing on the record to show that under "some order" (a vague expression which might include an implied authorisation) the Collector, did not authorise the action taken by the Manager. The position is that the suit was instituted by the plaintiffs before they became wards of Court the written statement of the defendants was filed after the Court of Wards took charge of the plaintiffs estate and inters alia it claimed that the suit could not proceed unless the Court of Wards became plaintiff; the Manager thereupon made an application to the Court upon whose direction the plaint was altered to show the wards as plaintiffs through (bazarie) the Manager of the Court of Wards and in this state of the record the parties proceeded to trial, no issue as to jurisdiction being raised or tried.

(2.) Several decisions of the Calcutta High Court have been cited on behalf of the appellants in which it was held that Section 55 was a bar to suits (using that term in a wide sense) not covered by the provisos to that enactment which were instituted by the Manager without authorisation by some order of the Court of Wards. But in the more recent decisions such as Joy Churn Dutta V/s. Sarjubala Debi 1920 Cal 197 it is at least implied that it is not a question of the jurisdiction of the Court in which the suit has been instituted, but the section merely seeks to control the Manager, and that there is nothing in the section which prevents the defendants from waiving. That decision related to the first proviso to Section 55 under which the Manager may authorise a plaint to be filed in order to save limitation, the suit however not to be afterwards proceeded with without the sanction of the Court of Wards. But there is a distinction between the decisions cited and the present case. We are not referred to any decision relating to a case where the Manager took over the carriage of litigation which was pending when the plaintiffs became wards. To my mind Section 55 does not contemplate such a case. In terms it simply prohibits initiation of litigation on behalf of a ward by the Manager except with the authorisation of the Court of Wards. There is no indication that the prohibition is to extend to litigation of the wards which is already in progress when the Court of Wards assumes charge of the estate of the ward. And apart from the serious practical difficulties which would arise from the interpretation suggested both in the Courts and in the management of the estate, it would appear that the Act sufficiently provides for such a case in Section 51 under which the Manager is to be named, as in the present instance, as next friend or guardian for the suit and to represent the ward.

(3.) Further in the present instance the appellants accepted the intervention of the Manager as sufficient compliance with their objection to the maintainability of the suit and raised no issue on the point in their grounds of appeal to the District Judge so that the Courts would be warranted in refusing to allow the point to be raised. But apart from this consideration, it is a complete answer to the plea that Section 55 does not contemplate anything but the initiation of the particular litigation and has no reference to pending litigation in respect of which the Court already possesses jurisdiction. I would dismiss this appeal with costs. Dhavle, J.