(KOMANDUR) SRINIVASACHARLU Vs. (KODURU) MUNIRATHNA NAIDU

JUDGEMENT

(1.) This is a suit to declare that a certain decree in O.S. 327 of 1925 is null and void and not binding on the plaintiff or his properties. The plaintiff was a minor in that O.S. and his mother was his guardian-ad-litem. This suit is brought by the plaintiff who is still a minor with his maternal uncle as his guardian-ad-litem. The Munsif dismissed the suit. The Subordinate Judge allowed the appeal holding that there was gross negligence on the part of the minor's mother in not presenting a defence to the suit in O.S. 327 of 1925. The mother put in a written statement, Exhibit D, in which she pleaded that the minor's father was only a simple mortgagee and not a mortgagee in possession and therefore the 3 defendant (the minor) could not be liable in a rent suit. She did not instruct anybody to appear for her or appear herself in person at the time of the hearing though she afterwards filed an application to set aside a decree that had been passed ex-parte against her minor son.

(2.) Now the only question that arises in this case is whether the failure to put forward a valid defence at the trial is gross negligence. This point is covered by the decisions in Punnayyah v. Viranna A.I.R. 1922 Mad. 273 and Venkata Lakshmi Kantaraju Garu V/s. Peda Venkata Jagannatha Raju Garu A.I.R. 1924 Mad. 281, to which decision I was a party. It has been held in L.P. Appeal 2 of 1925 that in these cases it is only a question of law in so far as the facts found constitute gross negligence. The finding of the learned Subordinate Judge is that the facts did constitute gross negligence and he is undoubtedly right.

(3.) The second appeal must, therefore, be dismissed with costs.