Abdul Wahab vs Raman Panickar and Others

Jagadeesan, J.—The plaintiff in O.S.No. 650 of 1981 on the file of District Munsif, Valangaiman at Kumbakkonam is the petitioner in both

the revisions. The defendants in the said suit are the respondents. The plaintiff filed the suit for partition to divide the property into two halves and

allot one such share to him. The first defendant is entitled to other half share. The defendants 2 to 4 are the tenants. The other respondents are the

legal representatives of the first defendant.

During the pendency of the suit I.A.No. 1546 of 1984 was filed by the sixth respondent here in to appoint a court guardian for the first

defendant. After medical evidence, the lower court by order dated 19.6.85 allowed the application for appointment of a guardian to the first

defendant. The plaintiff has failed to take steps for the appointment of guardian for the first defendant. The court below had passed an ex parte

preliminary decree on 3.7.85.

Thereafter the petitioner herein filed I.A.No. 883 of 1988 to bring the legal representatives of the deceased first defendant on record and

I.A.No. 884 of 1988 to pass a final decree pursuant to the preliminary decree dated 3.7.85. The court below had dismissed both the applications

on the ground that since the application for appointment of guardian for the first defendant had been allowed and the suit had been disposed of

without appointing the guardian, the preliminary decree itself is nullity and no further proceedings can be continued. The petitioner has filed both

these revisions against the orders in I.A.Nos. 883 and 884 of 1988.

The counsel for the petitioner contended that the application for appointment of guardian had been allowed by the trial court. Both the petitioner

as well as the respondents had failed to take steps to appoint the guardian for the first defendant and that the lower court ought not to have

proceeded with the trial without appointing the guardian. Ultimately the mistake had been committed by both the parties as well as the court.

Hence now the ex parte decree dated 3.7.85 may be set aside and the trial court may be directed to proceed with the suit from where it was left.

Now that the first defendant is no more and the legal representatives have been brought on record, the legal representatives can proceed with the

suit. The further contention of the counsel for the petitioner is that the suit has been filed against the first defendant and had been proceeded further

without appointing a guardian in spite of the order of the court and now that the legal representatives are available, they will not be prejudiced in

any manner by the continuation of the suit from the stage of the order of the appointment of guardian for the first defendant.

The learned senior counsel for the respondents contended that once it is found that the first defendant is of unsound mind and is not able to take

care of herself and a guardian has been directed to be appointed, the failure on the part of the petitioner to take steps to appoint a guardian and

allow the suit to be decreed ex parte, makes the decree a nullity. As the decree itself is a nullity, the lower court has rightly dismissed both the

applications to bring the legal representatives on record and to pass a final decree pursuant to the preliminary decree. If at all the petitioner wants,

he can file a fresh suit for partition, as there is no limitation for the same.

The only question to be considered in these revisions is whether the preliminary decree can be set aside and the suit can be directed to be

proceeded with or to confirm the order of the lower court and direct the petitioner to file a fresh suit.

The undisputed facts are:

The plaintiff filed the suit for partition. In I.A.No. 1546 of 1984 by order dated 19.6.85, the lower court declared that the first defendant cannot

look after herself and directed a guardian to be appointed. The plaintiff never took steps for the appointment of guardian as per the above said

order. When the suit was posted for ex parte evidence, the respondents also did not bring it to the notice of the court that already a guardian has

been directed to be appointed and the plaintiff has not taken any steps for the appointment of guardian. Ultimately ex parte preliminary decree was

passed on 3.7.85. The first defendant died some time in January, 1988 and thereafter the petitioner has filed I.A.Nos.883 and 884 of 1988 in

March, 1988 to bring the legal representatives of the first defendant on record and to pass a final decree.

The counsel for the petitioner, in support of his contention referred to a case reported in Jambu Ammal v. Natarajan Pilial 70 I.C. 867 : AIR

1922 Mad. 485. That case dealt with a case where notice was not issued to the guardian of the minor and the Head Clerk of the court has been

appointed as the guardian. The court held that without issuing notice to the guardian of the minor, the proceedings cannot be proceeded with and

as such the entire proceedings are nullity. But, however, exercising its jurisdiction u/s 151, C.P.C, the lower court, subsequent on coming to know

the mistake, had rectified the same by setting aside the order of the appointment of the Head clerk as guardian. That order was challenged before

this Court. This Court has held as follows;

In this case the District Munsif who tried Small Cause Civil Suit No. 835 ought to have issued notice to the guardian of the minor defendants after

being informed by the process server of her address; and his procedure in overlooking Order 32, Rule 3 and appointing his own Head Clerk who

could have no knowledge of any defence to the suit as guardian ad litem is clearly illegal. In these circumstances, the District Munsif was justified in

passing an order he did, and I do not think that I should interfere with his order which I consider to be eminently just. The petitioner could now ask

the court to proceed with the case, Small Cause Suit No. 835 from the stage in which it was at the time when notice was returned unserved upon

the guardian of the minor defendants and it would be right and proper for the District Munsif to have the petitioner on record as supplemental

plaintiff and proceed with suit if the petitioner is so minded. I hold that the lower court''s order is right and I dismiss the petition with costs.

The learned Counsel for the petitioner placed reliance on another judgment reported in Talib Ali Shah Vs. Piarey Lal and Another in which it has

been held as follows:

When the suit was instituted Talib Ali Shah was duly made a defendant although he was wrongly described as a major. He ought to have been

described as a minor and after the institution of the suit an application should have been made to the court under Order 32, Rule 3 for the

appointment of a guardian ad litem of the minor. The omission to follow the necessary procedure amounted to a material irregularity which made

the decree totally ineffective and invalid as against the minor. But we cannot treat the suit as having been either dismissed as or decreed effectively

against Talub Ali Shah. The view which has been prevailed in this High Court is that subsequent to the discovery that the minor has not been

properly represented by a duly appointed guardian, it is open to the court in the exercise of its inherent power u/s 151, C.P.C., to restore the case

to its original number on the file and proceed with it after duly appointing a guardian. We may refer to the case of Bhagwan Dayal v. Param Sukh

Das (1917) 39 All. 8 : 36 I.C. 366 which was again followed in Kirpa Kishan Kishori Vs. Babu Lal and Another, . These cases appear to have

been dissented from by the Madras High Court on two grounds. First that Order 9, Rule 13 cannot apply as the minor was really no party to the

decree, and secondly that the restoration of the case and the appointment of a new guardian in that amount to the addition of a new party to the

suit. It is unnecessary for us to consider whether Order 9, Rule 13 would be applicable to such a case, for, in the present case the inherent

jurisdiction u/s 151 has been exercised. We are unable to accept the view that the restoration of the case and the appointment of a guardian ad

litem in any way amounts to the addition of a new party. Talib Ali Shah has been a defendant to the suit from the very beginning, the only defect

being that no proper guardian was appointed for him. The appointment of a guardian ad litem must always be some time after the institution of the

suit and the suit must be deemed to have been instituted against the minor or the date when it was filed even though on that date the guardian ad

litem was not or could not have been appointed.

The learned Counsel for petitioner further relied upon the following judgments for the principle that no litigant should suffer because of the

court''s mistake; Annapurna Chatterjee Vs. Sm. Sabita Guha and Others, , I am of the opinion that these judgments have no relevance to the facts

of the present case. The steps to be taken for the appointment of the guardian cannot be said to be the duty of the court. It has been held by both

the judgment that the default of the court means the act of court as a whole. Here it cannot be said that the failure to appoint the guardian is the

default on the part of the court. Hence those judgments will not help the petitioner.

The next decision relied upon by the counsel for the petitioner is reported in Annapoorni v. Janaki, (1995) 1 L.W. 141 and P. Palaniappan Vs.

The Co-operative Land Development Bank Limited, wherein this Court has held that the jurisdiction under Article 227 of the Constitution of India

can be invoked, when this Court finds that a decree suffers from an error of law apparent on the face of the record, owing to non-application of

mind of the court to the relevant principles of law, and this Court cannot keep silent allow and the decree to be enforced, particularly when it

causes grave injustice, the counsel drawing support of these judgments contended that since the preliminary decree is a nullity, this Court can set

aside the decree and permit the parties to proceed with the suit from where it was left in order to avoid further delay.

Per contra, the senior counsel for the respondents referred to the judgments reported in Ram Chandra Arya Vs. Man Singh and Another, .

The Supreme Court was dealing with a case where a decree was only against a lunatic without appointment of guardian and pursuant to that

decree, the properties were sold in court auction. Subsequently applications have been filed to set aside the sale under Order 21, Rules 89 ""and

On facts the court held that since the decree against the lunatic without appointment of guardian is a nullity, the sale held pursuant to the

execution of the decree is also ab initio void. The court has no jurisdiction to proceed with the execution of a decree which is a nullity. Hence there

is no question of any application for setting aside the sale maintainable, since the entire proceedings are void. Yet another judgment relied upon by

the counsel for the respondents is reported in Rambadan Rai and Others Vs. Paltan Paswan and Others, . It is a case where an ex parte decree

was passed against the minor not properly represented in the suit. The court held that the decree is a nullity and application to set aside does not

lie. The same principle was laid down in another case reported in State Trading Corporation of India Ltd. Vs. K.V. Vaidyalingam and Others, . In

this case, the court has further discussed with regard to the provisions of Order 22, Rule 4, C.P.C, and Order 1, Rule 10, C.P.C. as follows;

The suit was filed on 3.11.1975 while the fourth defendant had died even on 19.8.1975. Consequently, the suit was led against a dead person as

far as the fourth defendant was concerned. A suit against a dead person is admittedly a nullity. Therefore, as far as the fourth defendant was

concerned, it was as if no suit whatever had been filed. If so, Order 22, Rule 4, C.P.C. cannot be invoked for the purpose of impleading the legal

representatives of the fourth defendants as parties to the suit.

The learned Counsel for the petitioner, relying on the decision of this Court in Kannangara Ismail Vs. Palayat Kappadakkal Pavu Amma and

Others, contends that these persons could be impleaded under Order 1, Rule 10, C.P.C. But that was not the claim of the petitioner herein. It is

one thing to file an application to implead certain persons as parties to a suit in the place of a deceased party under Order 22, Rule 4, C.P.C. and

it is entirely another thing to file an application under Order 1, Rule 10 to implead a new party, because the rights of the parties will not be the

same. When a legal representative is brought on record under Order 22, Rule 4, C.P.C. his status and rights of the parties will be the same as that

of the person who died in whose place he has come on record, while the rights and obligations of a person impleaded as a party under Order 1,

Rule 10, C.P.C. will not be so circumscribed, but will be different and independent. Therefore, I am unable to accept the contention of the learned

Counsel for the petitioner that the proposed parties could be impleaded under Order 1, Rule 10, C.P.C. and the suit itself must be deemed to have

been instituted against them. Hence the Civil revision petition fails and the same is dismissed.

From the principles laid down in the above cases, it is clear that where the suit has been filed against a dead person or where a minor or a lunatic

had not been properly represented and a decree has been passed, the said decree was held to be a nullity and the further proceedings are held to

be ab initio void. Only two cases lend some support to the petitioner herein. One of the cases is reported in Talib Ali Shah Vs. Piarey Lal and

Another But the learned judges disagree with the principles laid down by this Court in Arumuga Goundan v. Periavanjiappa Goundan AIR 1924

Mad. 489 and rendered the judgment. As I am bound by the judgment of this Court, with great respect to the learned judges, I am not in a

position to follow the principle laid down in Talib Ali Shah Vs. Piarey Lal and Another . The other case which lends support to the petitioner is

reported in Jambu Animal v. Natarajan Pillai 70 I.C. 867. In this decision the court rectified its own mistake, since without ordering notice to the

guardian, the court has appointed the Head Clerk as the guardian. On coming to know of the mistake, it has exercised its has exercised its power

u/s 151, C.P.C. and rectified the mistake.

In the case on hand, the lower court by order dated 19.6.1985 allowed I.A.No. 1546 of 1984 for appointment of guardian. Without taking

any steps for the appointment of guardian, hardly within two weeks, the decree has been passed. Though the non-appointment of the guardian

makes the decree a nullity, no further proceedings have been proceeded with pursuant to the said decree. The suit has been filed in the year 1981.

Only in the year 1984 the application for appointment of guardian had been filed. Hence it cannot be said that the suit has been filed against a dead

person or a wrong person or a person not properly represented. The guardian has been directed to be appointed due to the subsequent

development, after the filing of the suit. In such circumstances, I am of the opinion that the principles laid down in State Trading Corporation of

India Ltd. Vs. K.V. Vaidyalingam and Others, may be of some help to the petitioner. The legal representatives of the deceased first defendant can

be brought on record invoking the provisions of Order 22, Rule 4, C.P.C. When once it is held that Order 22, Rule 4, C.P.C. is applicable and

the legal representatives of the first defendant can be brought on record, then naturally the consequence will be the suit has to be proceeded from

where it was left. Further, I am of the view that in the interest of justice and to avoid further delay, only this procedure can be adopted further

delay, only this procedure can be adopted and the legal representatives may not be said to be prejudiced, since now they are stepping into the

shoes of their predecessor-in-title, the first defendant.

Hence the order in I.A.No. 883 of 1988 is set aside and the said application shall stand allowed and C.R.P.No. 3224 of 1989 is allowed.

C.R.P.No. 3225 of 1989 is dismissed, confirming the order in I.A.No. 884 of 1988.

In view of the above order, the lower court is directed to restore O.S.No. 650 of 1981 on its file and proceed with the suit from where it was

left. No costs.