DAMU DIGA Vs. VAKRYA NATHU

JUDGEMENT

(1.) The only question for our decision is whether the lower Court has rightly held that this suit is barred by the decision in Suit No. 185 of 1915 of the same Court. That the present plaintiff is the representative in interest of the plaintiff in that suit is not denied. The then defendants were three in number, and the present defendant was one of them. The question is what is the nature of the order disposing of that suit and what is its effect. The terms of the order made clearly show that the Judge who made that order dismissed the suit for plaintiff s default. The order was made at an adjourned hearing and the Court must be taken to have acted under Order XVII, Rule 2, and to have based its order on the provisions of Order IX. It was argued that Order XVII, Rule 3 applied but that is not so. The terms of the order show that the suit was dismissed on account of plaintiff s default and on no other ground. The decision in Chandramathi Ammal v. Narayanasami Aiyar (1990) I.L.R. 33 Mad. 241 appears to contain a correct exposition of the relative scope of Sections 157 and 158 of the Code of Civil Procedure of 1882, and that decision is equally applicable to Rules 2 and 3 of Order XVII. As Order XVII, Rule 2, applies we must refer to Order IX for the authority to dismiss the suit.

(2.) So far as the first two defendants were concerned Order IX, Rule 8, clearly applies. They were present and plaintiff was absent. But they are not parties now and the question is how the case stands as between plaintiff and defendant 3. I find it difficult to follow the lower Court in holding that for the purposes of Rule 8 of Order IX it is sufficient if one or some of several defendants appear. It is necessary, as I read the law, to take the case of each defendant on its own merits. Here the order itself is merely one dismissing the suit, and so far as the present defendant is concerned may be referred to Order IX, Rule 3, just as readily as to Order IX, Rule 8. In the one case a subsequent suit is barred, in the other it is not barred. In the case of several defendants the consequences of an order of dismissal need not necessarily be the same against all. The present defendant was absent and prima facie therefore the order of dismissal as between him and the plaintiff would not bar a subsequent suit.

(3.) But there is a further fact which requires consideration. The present defendant was (and is) a minor. In the previous suit he was at the time represented by a proper guardian ad litem, the Nazir of the Court. At the date when the suit was dismissed the Nazir s appointment had terminated and no guardian had been appointed. A minor defendant is a party to a suit in the eye of the law, but without the appointment of a guardian it was not possible for him to appear. It was in fact, owing to the absence of any guardian, that the suit stood adjourned. The Nazir s appointment was cancelled because the plaintiff failed to furnish him with funds as directed by the Court, but the suit was not dismissed owing to plaintiff s failure in this respect. At the date of the dismissal there was no guardian and the minor defendant was not therefore represented. Now the provisions of Order XXXII, Rule 3 are imperative, and without complying with those provisions the Court could not make any decree as between the plaintiff and the minor defendant. As between these parties therefore any order is (in my opinion) a nullity. And the second suit cannot therefore be barred.