Amar Singh vs Kishan Singh

Kartar Singh, J.—The facts leading up to this reference made by the learned Judge in Chamber to a Division Bench may shortly be stated as follows:

Amar Singh Defendant major and the Gurdev Singh and Sukhdev Singh minors Defendants under the guardianship of their grandmother Mst. Bhagwan Kaur preferred an appeal through Mr. Asad Ali, Advocate, to the Court of District Judge Sunam which was fixed for hearing on 13th Bhadon 2004. On that day, however, neither to Appellants nor their counsel made their appearance and the appeal was dismissed in default the same day. On 6th Maghar 2004 Amar Singh one of the Appellants made an application with the object of being informed as to what orders were passed in the appeal fixed for 13th Bhadon 2004. It was alleged inter alia in that application that he was not able to attend on the fixed date on account of communal disturbances in the Ilaqa and the dislocation of communications and that he was not aware as to what orders were passed on 13th Bhadon 2004 in his appeal. The report made on this application by the Ahalmad of the Court revealed that the appeal was dismissed for default of appearance of the Appellants on the 13th Bhadon 2004 whereupon the presiding officer issued a notice to the Respondents for their attendance. But meanwhile Amar Singh made another regular application supported by an affidavit wherein it was stated that he had come to know of the dismissal of his appeal on that day and as he was prevented from attending the Court on account of communal disturbances the appeal should be restored and heard on merits. The Petitioner was put to proof and after recording necessary evidence adduced by both aides the learned District Judge dismissed the application for restoration on 6-12-2004. The Petitioner felt aggrieved and preferred an appeal in this Court which was heard by a learned Judge in Chambers but in view of the fact that the contentions raised in the appeal were considered important ones involving a consideration of law as laid down in 3 Patiala Law Reports 218, the learned Judges referred this case to a larger Bench as stated above for the disposal of the appeal as well as for the adjudication of the question of setting aside the dismissal order suo motu on the revision side.

The arguments were heard on the last hearing at great length but we came to the conclusion that without the perusal of the original order whereby the appeal was dismissed foe default of appearance it was not safe to dispose of the appeal. The file of civil Appeal No. 2000 of 2002 was accordingly sent for and the same has since been received. The counsel were, therefore, allowed to address the Court once again to day in the light of the record sent for.

Mr. Dalip Chand arguing on behalf of the Appellant contended that when the appeal was put up for hearing before the learned District Judge on 13th Bhadon it was his duty to stay the proceedings when no body appeared on behalf of the minors. The counsel maintained that the non-appearance of the guardian or next friend of the minors amounted to wilful negligence in the discharge of duties and the Court was bound to take action under Order 32 Rules 9 and 10, CPC for the removal of the guardian of the minors and to take further steps to appoint another guardian. Reliance was placed on ''Darbara Singh v. Raunaq Singh 3 Patiala Law. Rep. 218. In this case D, a minor filed an appeal through his next friend on 23rd Assauj, 1986. The appeal came up for hearing on 24th Magh 1986. His next friend did not appear and the appeal was consequently dismissed for default. It was held.

that the appeal of the minor ought not to have been dismissed. The Court ought to have stayed the appeal and proceeded with the appointment of somebody else as the next friend of the minor Appellants and that it was imperative for the Court to do so under Order 32, Rule 10 and 11.

It was further contended that where the Court finds that the next friend is guilty of negligence and commits default in appearance the proper course is to stay further proceedings and not to to dismiss the suit for default. The argument apparently was based on the proposition laid down under Order 32, Rule 9 and 10 which deal with the removal of next friend and the stay of proceedings on such removal. But of the two rules, one deals with the removal of the next friend while the other relates to the stay of proceedings on the removal of the next friend and it clearly follows that the removal of the next friend is the first step which necessarily requires certain motion on behalf of the minor or by Defendants and the Court if satisfied of the sufficiency of cause assigned may order the next friend to be removed accordingly. In this case, no application was made on behalf of the minors and it was Amar Singh alone who after several months of the order of dismissal filed an application for the restoration of the appeal. The question arose as to whether the application was within time or the applicant was entitled to the benefit of Section 5, Limitation Act, for the extension of time. On both these points, the learned Counsel conceded that time could not be extended u/s 151 CPC by the Court under its inherent powers and Section 5, Limitation Act, also did not apply in such cases so far as Amar Singh was concerned; but asserted that in the case of the minors it was incumbent upon the Court itself to stay the proceedings in order to enable the next friend or some other parson interested in the welfare of the minors to proceed with the case and that the appeal should not have been dismissed in default qua them.

On the other hand, the contention of the Respondent''s counsel was that the fact of the minority of the Plaintiffs or Appellants makes no difference for there is no distinction made in the CPC in their favour inasmuch as the minor may sue again through another next friend or himself on attaining majority and that the petition for restoration was rightly dismissed. Reliance was placed on Mt. Gurudevi v. Ramanmal 8 I.C. 547 : 99 P.L.R. 1910; Vishindas Fatehchand v. Narumal Dharamdas A.I.R 1921 Sind 200 : 17 S.L.R. 41 and Venkatasurya v. Bapanna Rao 58 Mad. 929 : A.I.R.1935 Mad. 565. The case reported in Mt. Gurudevi v. Ramanmal 8 I.C. 547 : 99 P.L.R. 1910 is a short judgment wherein it was held by Johnston J. that minor''s suit is liable to be dismissed if his next friend makes default in appearance at the time of hearing of the suit and the factum of minority of the Plaintiff makes no difference. Similarly in the Madras case it was held that a minor is not entitled to have a suit which has been dismissed for default, restored to the file or to have an ex parte decree set aside where it is shown that the next friend or guardian absented himself or herself deliberately in pursuance of a plan to obstruct the litigation or that the absence was not bona fide.

In the present case although it is evidence that communal disturbances took place in Bhadon 2004 on a wide scale and Amar Singh major one of the Appellants and Mt. Bhagwan Kaur the next friend of the minor Appellants might have been prevented from attending the Court on 13th Bhadon, yet no case has been made out as to why they abstained from moving the Court in Assauj or Katik when normal conditions had restored and why when Amar Singh on his application became aware of the dismissal of the appeal in default was not able to file a regular application with affidavit earlier than the one made in Poh 2005. This manifestly shows certain negligence on the part of the Petitioners and in the light of the principle laid down in the authorities cited above the minors were not entitled to have the appeal restored which had been dismissed for default sheer on the plea of minority.

The other difficulty as explained above is that the period prescribed for the restoration of a suit or appeal is the District Court for setting aside the order of dismissal is one month and this period cannot be extended by the Court either under inherent powers or by giving the benefit of Section 5, Limitation Act, and as such even if the application of Amar Singh be treated as an application on behalf of the minors also it does not help the minors whose case cannot be distinguished be far as the applicability of Rule 9, Order 32, Code of Civil Procedure, is concerned. The case of a next friend is distinguished from one of the guardian-ad-litem of the minor for the simple reason that in the former case the next friend chooses to come into Court and is required to proceed with the case with all the diligence while in the latter case it is the duty of the other party who proceeds against the minor through his guardian ad litem and when the guardian refuses to perform his duty some one else should stand in his place. For all these reasons, I am of the opinion that in the case of minors also the position cannot be improved and it was not incumbent upon the trial Court under Rule 9, Order 32 to remove the next friend suo motu who had filed an appeal and to appoint another in her place as laid down in Darbara Singh v. Raunaq Singh 3 Patiala Law Rep. 218. The proposition in the Patiala case appears to have been laid down as if the next friend had died and reference is therefore made to Rule 10 and 11 both. In the case of next friend the proper rule is Rule 9 instead of Rule 10 and 11 and the wording of the rule leaves no scope for doubt that the removal is to be made on the application of some one. In the light of this principle the dictum laid down in Darbara Singh v. Raunaq Singh 3 Patiala Law Rep. 218, does not appear to be sound one. In the result so far as the appeal is concerned the same is dismissed with costs.

This brings me to the other question embodied in the reference order as to whether the original order of the District Judge is bad in law and is liable to be set aside under the revisional powers of this Court. The order reads as follows:

Iswaqat 11 baj chuke hain. 5/6 awazen dialie gaien magar na Appellant aur na hi us lea vakil hazir hai. Vakil Respondent hazir a gaya hai, is liye yeh misal adam perwi appeal mai kharcha dismiss kitta janda hai.

Now the wording of the order as it stands makes no mention of the minor Appellants and it appears that this fact wholly escaped the notice of the learned District Judge that he was dismissing the appeal in default in which two of the Appellants were minors. The order of dismissal for default was admittedly passed under Order 41, Rule 17, Code of Civil Procedure, where the word used is ''may'' and not ''shall'' as used under Order 9, Rule 8, Code of Civil Procedure, and as such it was not imperative for the Court to dismiss the appeal for default of appearance of the Appellants. In the old Code where the Appellants did not appear when the appeal was called for hearing, the Court was bound to dismiss the appeal; but under the present Code, Court is not bound to dismiss an appeal for default and it was rather essential that the Court should have exercised a sound discretion in not proceeding so quickly to judgment. It is always desirable to accommodate litigants to some extent if their pleaders happen to be absent and in this case Mr. Asad Ali as alleged bad left for Pakistan and owing to the disturbances it was all the more necessary for the trial Court to wait for some time and more especially in the case of minors the discretion should have been exercised in their favour. In view of these facts, I am of the opinion that the jurisdiction vested in Court was not properly exercised and as such I feel inclined that on the revisional side, this Court should make amends for the hasty order of dismissal in the case of minorsin order to protect their interest. I would, therefore, set aside the original order of dismissal pissed by the District Judge on 13-5-3004 and direct that the next friend be afforded an opportunity to proceed with the appeal or some one on behalf of the minors to make an application for his removal and for the appointment of another next friend for the final disposal of the case on merits. Parties have been directed to appear in Court of District Judge Sangrur on 30-11-2006. Order accordingly.

Teja Singh, C.J.

I concur in the order proposed by my learned brother and wish to add a few words.

It was argued before us that since two of the Appellants were minors and on the day the appeal was called in the Court of the District Judge their next friend failed to appear it was the duty of the Court either to adjourn the appeal in order to enable the next friend to put in appearance or to stay further proceedings under Rule 10 of Order 32. The argument does not appear to me to be sound. Rule 10 reads as follows:

(1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place.

(2) Where the pleader of such minor omits, within a reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or in the matter in issue may apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit.

The very words of Sub-rule (1) would go to show that further proceedings can be stayed only if the next friend of the minor retires or is removed or dies, and not otherwise. As regards the removal of a next friend, we must turn to Sub-rule (1) of Rule 9 which is to the following effect:

(1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with ft Defendant whose interest is adverse to that of the minor as to make it unlikely that the minor''s interest will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit, ceases to reside within British India, or for any other sufficient cause, application may be made on behalf of the minor or by a Defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit.

It will be seen from the words of the above Sub-rule that it is a permissive provision and does not make it obligatory upon a Court to remove the next friend even if every one of the conditions laid down therein is satisfied. Secondly, it lays down that whenever the removal of a next friend is required, there should be an application either by someone on behalf of the minor or by the Defendant. Thirdly, the removal can be ordered only under the conditions specified in the Sub-rule and they are (i) when the interest of the next friend is adverse to that of the minor; (ii) when the next friend is so connected with the Defendant other than the minor whose interest is adverse to that of the minor as to make it unlikely that the minor''s interest can be protected by the next friend; (iii) when the next friend does not do his duty; (iv) when the next friend ceases to reside within British India during the pendency of the suit; and (v) when there is any sufficient reason for his removal. In the present case no question arose as regards conditions I, II and IV nor do I think that merely because the next friend absented herself it could necessarily mean that she was not doing her duty. I wish to point out that in this connection the position of the next friend of a minor Plaintiff is different from that of the guardian of a minor Defendant. When a minor is sued by someone else and a guardian is appointed to represent him in the case it is the guardian''s duty to defend the case and to protect the interests of the minor, unless he be of opinion that the Plaintiff''s claim is correct and he is entitled to the decree prayed for. In the latter case, it is open to him to approach the Court for permission to admit the Plaintiff''s liability, but if he does not do so and the interests of the minor require that the case should be defended, his failure to put in appearance and to fight the case on the minor''s behalf can legitimately raise the inference that the guardian is not doing his duty and the Court must remove him and appoint someone else in his place as the minor''s guardian. When, however, a person institutes a suit on behalf of the minor as his next friend ho takes up that duty of his own accord and not because the Court appoints him to watch the minor''s interests. So, when be fails to attend the case, or does not proceed with it this fact by itself cannot raise the presumption that be is not doing his duty. Accordingly, the Court will not be justified in removing a next friend simply because of his absence from Court on a date of hearing and if he is not removed the question of staying further proceedings for the appointment of another next friend cannot arise. I do not mean to say that in no case can a Court remove a next friend because of his absence, because if the circumstances of a particular case are such that taken together with the absence of the next friend they afford a ground for thinking that the next friend is not doing his duty the Court is quite competent to order his removal and if immediate steps are not taken by someone interested on behalf of the minor to appoint another next friend the Court would stay further proceedings under Sub-rule (1) of Rule 10. In the view I take I hold that when the Plaintiff''s next friend is absent at the time the suit is called on for hearing it can be properly dismissed in default under Order 9, Rule 3 or Order 9, Rule 8 as the case may be. Similar is the case with an appeal, that is to say, when the Appellant is a minor and his next friend does not appear when the appeal is called on for hearing the Court may make an order that the appeal be dismissed. The only difference between the appeal and the suit is that when the suit is called and the Plaintiff is absent, but the Defendant is present, the Court is bound to dismiss it in default under Order 9, Rule 8 unless the Defendant admits the claim or part thereof in which case a decree has to be passed upon such admission, while when the Appellant is absent the Court may or may not dismiss the appeal in default even if the Respondent is present. The word used in Order 9, Rule 8 is ''shall'' and that in Order 41, Rule 17 which relates to dismissal of an appeal for Appellant''s default is ''may.''

The Appellant''s counsel drew our attention to two rulings of the Patiala High Court (i) Darbara Singh v. Raunaq Singh 3 Patiala Law Rep. 218 and (ii) Guroharan Singh v. Mohd. Ismail 6 Patiala Law Rep. 331. In the former case an appeal was preferred on behalf of a minor by his next friend. On one of the dates of hearing of the appeal the Mukhtar-i-am of the next friend did not appear and the appeal was dismissed in default. Later on the Mukhtar-i-am of the next friend applied for the restoration of the appeal. The application was dismissed by the additional Nazim. When the matter came up in appeal before the High Court, it was held that the order dismissing the appeal in default was wrong, in as much as the Appellant was a minor and since the next friend did not put in appearance it was the duty of the Court to stay the appeal and proceed with the appointment of someone else as the minor''s next friend. The learned Judge of the High Court even went to the extent of observing that the dismissal of the appeal in default was ultra vires. It may here be mentioned that the application for restoration was made within thirty days of the order of dismissal and no question of limitation was involved. The second was a Bench case and the question involved therein was whether a suit could be dismissed in default when the Plaintiff was a minor. The order dismissing the suit was made on 25th Bhadon, 1988 but the application for restoration was made on 4th chet 1988. On the date of dismissal the Plaintiff was a minor but by the time he applied for restoration he had become major. Following the previous Patiala case the Bench held that the order dismissing the suit was wrong and ordered the case to be restored. With all deference, my opinion is that the view taken in both these cases that in no case a suit or an appeal could be dismissed in default when the Plaintiff or the Appellant happens to be a minor is not correct. I have shown that stay of proceedings could only be ordered under Rule 10 of Order 32 when the next friend of the minor retires, dies or is removed and the mere fact that the next friend does not put in appearance when the case is called on for hearing would not justify his removal. In the first case there was no discussion of the legal point involved. In the second, two rulings were relied upon. Out of these, one is the previous Patiala case and the other is a single Bench decision of the Madras High Court Venkataratnam v. Nagappa A.I.R.1934 Mad 616 : 182 I.C. 163 in which the learned Judge observed that if there are minor Plaintiffs or Defendants who are represented as they must be by a next friend or guardian-ad litem and the next friend or guardian is absent, through whatever cause it may be, at the trial, then that fact alone is a sufficient reason for setting aside an ex parte decree passed against minor Defendants or for setting aside an order of dismissal of the suit in the case of minor Plaintiffs. The facts of that case were that the mother of the minor Plaintiff was absent on the day the case was called on for hearing and the suit was dismissed for default. In the application made by the mother for the restoration of the suit it was alleged that she was ill and it was for this reason that she was not able to attend the Court. The trial Munsif rejected the plea of the mother''s illness and holding that no sufficient cause had been made out refused to set aside the order of dismissal. On appeal the learned Judges of the High Court disagreed with the Munsif as regards the sufficient cause and observed that if the mother was really ill there was sufficient cause for her non-appearance if she was not, she was negligent and for this reason also the application for restoration deserved to be accepted. It was nowhere held by him that the order dismissing the suit for default was illegal or ultra vires nor did he go to the extent of observing that in no case should a minor Plaintiff''s case be dismissed for default. As regards the observations made in that case regarding the duty of a Court when the next friend or guardian or a minor Plaintiff or Defendant is absent when the case is called on for bearing, they were explained by the learned Judge himself in another case, Majeti Venkatasurya Subbarayudu Sowcar, being minor by mother and next friend Venkatasurya Satya Parvatamba now declared a major and the guardian discharged Vs. Majeti Bapannarao Sowcar and Others, which was heard by a Division Bench. In that case also, the Plaintiff was a minor and when his next friend failed to appear on one of the dates of hearing the suit was dismissed in default. The application for restoration of the suit was dismissed because the Court held that the next friend had absented himself deliberately in pursuance of a plan. The learned Judge of the High Court upheld the Sub-Judge''s view. The order of the Bench was written by Beasley C.J. who had decided the previous case. This is what he said:

In my opinion, there is no reason for thinking that the view taken by the learned Subordinate Judge with regard to the bona fides of the petition is incorrect.

I think it necessary, however, to say something with regard to some decisions which were relied upon in the course of the argument of the learned Counsel for the Appellant. He referred to Venkataratnam v. Nagappa, a decision of mine. In that case, I held that if there are minor Plaintiffs etc., (then he quoted his observations in the previous case). I see no reason for thinking that I wrongly decided that case or that the oases on which I relied were wrongly decided. I think indeed that they were all correct; but this decision of mine has been quoted recently in other oases in support of the argument that, whenever a minor is a Plaintiff or a Defendant and is represented by a next friend or guardian ad litem is absent and the suit is dismissed or decreed ex parte on account of that absence, the Court is bound to restore the suit to the file or set aside the ex parte decree because the minor has not been represented in the suit. It is argued that it does not matter what the cause 6f the absence may be, these decisions are to be taken as decisions that whenever the next friend or the guardian ad litem is absent, the minor is entitled to have the suit restored to the file or the ex parte decree set aside Irrespective of other considerations. That is not so.

Later on, the learned Judge said:

If an ex parte decree is passed in the absence of the guardian, then it is liable to be set aside because the minor was not represented at the trial; and such a decree is rightly set aside where the absence of the guardian is bona fide, but the guardian cannot be permitted to go on absenting himself time after time. If such a thing as that were to be allowed it would mean that an ex parte decree could never be passed against a minor during the minor''s minority. Every time the guardian was absent the minor would be able to say that he was not represented by his guardian and his guardian was absent, through neglect, illness or otherwise. There must be some limitation to the rule stated in those cases and the limitation must be that, where it is shown that the guardian absents himself or herself deliberately in pursuance of a plan in order to obstruct litigation, or the absence is not bona fide, the minor cannot claim the benefit of these decisions.

On the strength of these remarks, and even otherwise too, I am of the opinion that the principle laid down in the two Patiala oases is too wide.

The Appellant''s counsel also referred us to Kirat Narayan v. Chanchal Dass A.I.R.1921 Pat. 103 : 63 I.C. 736. In that case the trial Court dismissed the Plaintiff''s suit for default but added a proviso to its order that it would not operate to the prejudice of the minor Plaintiffs. The learned Judges held that there was no power in the Court to make an order in the form in which it did. It appears that the reason why the trial Court had made the order in question was that in its opinion the interest of the next friend of the minor Plaintiff was adverse to that of the minor. Dealing with this matter the learned Judges made the following observation:

The learned Subordinate Judge thought, and in my opinion, rightly thought that the interest of the next friend of the minor who was one of the Plaintiffs was adverse to that of the minors but if that was his view he should have proceeded under Order 32, Rule 9 and 10. He had no jurisdiction whatever to dismiss the suit and at the same time to say that the order of dismissal will not prejudicially affect the interests of the minor.

The order was accordingly set aside and the case was remanded for redecision according to law. I cannot understand how this case can help the present Appellants because it is not even alleged that the interests of his next friend were adverse to him nor the order dismissing the suit in default was conditional. The case which appears to me to be in point is Mst. Gurdevi v. Raman Lal 8 I.C. 547 : 99 P.L.R. 1910 in which it was held that a minor''s suit is liable to be dismissed for his next friend making default in appearance at the time of hearing of the suit.

The learned Judge observed:

No doubt, Plaintiff is a minor, but I fail to see that in the circumstances this makes any difference. I can find no distinction of this sort drawn in the Code of Civil Procedure.

The same view was taken by the Chief Court, Sind in Vishindas Fatehchand v. Narumal Dharamdas AIR 1921 Sind 200 : 17 S.L.R. 41.

I have mentioned above that the word used in Rule 17 of Order 41, ''may'' and when an Appellant is absent at the time the appeal is called on for hearing, the Court is not bound to dismiss the appeal in default. In the present case, apart from the fact that the Petitioner was a minor and was represented in appeal by his next friend it has been proved that the conditions prevailing in this part of the country during the days his appeal was dismissed by the District Judge were such that made it impossible for the Petitioner''s next friend to attend the Court personally. It is also proved that though the next friend was represented by a counsel, because of the communal disturbances the counsel had left the place without sending any intimation to the Petitioner''s next friend. There is no doubt in my mind that the learned District Judge while making an order dismissing the appeal is default did not take into consideration the circumstances that prevailed then and further that if he had done so he would not have made the order that he did. Or it may be that he was under the impression that as in the case of a suit his hands were tied and since there was no one present on behalf of the Appellant he had no other option but to make an order dismissing the appeal. This means that he either failed to exercise the jurisdiction which the law vested in him, that is, the jurisdiction to adjourn the appeal, or he acted in the exercise of that jurisdiction with material irregularity and the order is liable to be set aside in revision.