MAHAMMAD MAHMUD CHOUDHRY Vs. BEHARY LAL SAHA

JUDGEMENT

(1.) This appeal has been preferred from an order of remand passed by the First Additional District Judge of Sylhet. The fasts necessary to be set out for the purposes of the present appeal are these: The appellants were the plaintiffs in a suit for money in which there were originally three defendants. The defendants filed a joint defence taking various objections to the claim, one of them being that the amount claimed by the plaintiff's had been already paid back to them. When the suit was pending in the trial Court one of these defendants died leaving two minor sons as his heirs and thereupon the said two minors were substituted as defendants in the place of their deceased father and a pleader of the Court was appointed as their, guardian ad litem. The guardian ad litem appointed a3 aforesaid entered appearance in this suit and filed a petition on 22 June, 1928 adopting the original defence of the defendants as the defence of the minors who had been substituted. On the same day after a witness was examined on behalf of the plaintiff a petition was filed by the pleader, who had entered appearance on behalf of all the defendants originally, now signing on behalf of the two adult defendants, namely, Bepin Chandra Saha and Behari Lal Saha. The petition was also signed on behalf of the substituted minor defendants, namely, Bonomali Saha and Barindra Chandra Saha by the guardian ad litem Mohendra Nath Das, pleader. In this petition it was stated that the defendants would be bound by the special oath of plaintiff 2 in respect of the principal amount of Rs. 1,414. This statement in the petition obviously meant that as regards the question as to whether the principal amount advanced by the plaintiffs to the defendants had been repaid by them or not, the defendants would be bound by the said special oath. It was further stated in the petition that the question of compensation, costs and other things would have to be decided by the Court itself. On this petition being filed, the Subordinate Judge allowed plaintiff 2 to go into the witness box and to take the special oath and on that being done he decreed the suit for the sum of Rs. 1,414 with compensation and costs.

(2.) Thereafter Bepin Chandra Saha and Behari Lal Saha and the two minor defendants through the said Behari Lal Saha preferred an appeal from the trial Court's decision. Before the learned Judge it appears to have been contended that when the petition to be bound by the special oath of plaintiff 2 was filed on 22 June, 1928 only one of the two adult defendants was present in Court and the pleader who purported to file the said petition had noT been properly authorized to do so. It appears also to have been contended before him that the guardian ad litem of the minor defendants had not received instructions to join in the application and had not obtained the Court's permission for that purpose. The learned Judge came to no finding on the first contention, but preferred to decide the case on the second one. He took the view that Order 32, Rule 7, Civil P.C., applied to the case and that the proceedings were in the nature of an agreement or compromise to enter into which it was necessary for the guardian ad litem to have the leave of the Court and such leave should have been expressly recorded in the proceedings. Being of opinion that the absence of the leave aforesaid rendered the proceeding void and because the minors would not be bound by the agreement aforesaid he held that the decree would not possibly stand either as against the minors or even as against the adult defendants. The learned Judge, therefore, remanded the suit to the trial Court in order that it might be retried in the ordinary way after giving opportunity to the parties to adduce evidence. From this order the plaintiffs have preferred the present appeal.

(3.) In order to appreciate the exact position it is necessary to set out a few facts. It would appear from the order sheet that when on 22 June, 1928, the application was filed on behalf of the defendants the guardian ad litem was present in Court and on the same day made the application praying that the defence originally filed by all the defendants might be accepted as the defence of the minors who had been subsequently substituted. In the petition, as has been already stated, the guardian-ad litem had put down his signature as representing the minors Bonomali Saha and Barindra Chandra Saha. The question as to whether the proceedings were void or net by reason of the fact that leave of the Court was not taken seems to us to be concluded by the decision of this Court in the case of Sheo Nath Saran V/s. Sukh Lal Singh [1900] 27 Cal. 229. In that case it was held that: the offer of the guardian of a minor defendant on behalf of the minor to abide by the. deposition to be given by a plaintiff on oath taken in a particular form under the Oaths Act, stands on a very different ground from an agreement or compromise contemplated by Section 462, Civil P.C., of 1882, and that in such a case, the minor is bound by the consent of his guardian although given without the leave of the Court, provided that there is no fraud or gross negligence on the part of the guardian.