RAMKUMAR Vs. KUSHALCHAND GANESHDAS

JUDGEMENT

(1.) I think this revision must be allowed. The 2nd Glass Subordinate Judge No. 1, Akola, must understand that there are very grave responsibilities devolving on him by virtue of his office as the presiding officer of a Court of justice. He must bear in mind that there is something like procedure laid down by law for the proper disposal of a case and that he is bound to respect it and cannot act arbitrarily and whimsically as he pleases. The applicant is the widow of the original plaintiff Shrikisan; on his death, she was placed on record as his heir and legal representative (vide order-sheet dated 5th September 1922.) Her age then was 14 as the amendment in the title of the suit shows. The reference to the arbitration was made on her behalf by her next friend as per application dated 29th October 1925, when she was still a minor. How far the reference could be made by a minor's next friend without the leave of the Court expressly recorded in the proceedings was a question which had an important bearing on the validity 'of the award. Similarly, how far the manner in which the enquiry was held by the arbitrator affected the validity of reference and of the award was also a matter worthy of consideration : cf. Sanyasi Rao v. Venkata Rao A.I.R. 1923 Mad. 301.

(2.) SHE attained majority some time in 1926, i.e., during the pendency of the suit and necessarily of the arbitration proceeding. Nobody took care to ascertain just then from her whether she desired to continue the suit, as soon as she attained majority. This necessarily involved the question whether she desired to continue the arbitration proceedings upon the reference made during her minority. There was thus a failure of duty on the part of the next friend within the meaning of Rule 9, Order 32, Civil P.C. and it was the duty of the Court to remove the next friend on that account : cf Doraswami Pillai v. Thungaswami Pillai [1904] 27 Mad. 377.

(3.) HE would also have been able to see therein the imperative provision for giving notice of the filing to the parties. Article 158, Lim. Act, also makes this clear. There is a deplorable dereliction of duty on the Judge's part which constitutes a grave and material irregularity in the exercise of his jurisdiction, and his judgment is, therefore, liable to be set aside, for want of such notice : of Rangasami v. Muttusami [1885] 11 Mad. 144 and Chatarbuj Das v. Ganesh Ram [1809] 20 All. 474.