Bhairo Prasad Sahu vs Ram Chandra Prasad

Jwala Prasad, J.—The defendants are the appellants in this case. This appeal arises out of a suit brought by the plaintiff-respondent to set aside two ex parte decrees obtained against him by the appellants on the ground of fraud and gross negligence on the part of the guardian. The plaintiff is a minor. The decrees sought to be set aside are (1) dated the 8th of June 1912 and (2) 18th of November 1914. Prior to the obtaining of the aforesaid decrees the defendants-appellants had brought a suit in 1907 against the father of the present plaintiff for rent in respect of the property in suit, alleging that the rent was at the rate of Rs. 1.70 per annum. The plaintiff''s father contested the suit and the suit of the defendants-appellants was dismissed on merits on the 13th January 1908. Thereafter the appellants brought a suit for assessment of rent on the 30th September 1909, being suit No. 1322 of 1909 against the father of the plaintiff and his uncle Anjani Kumar. The appellants claimed assessment at the rate of Rs. 48 in place of their claim in the former suit at the rate of Rs. 1.70 per annum. The defendants in that case, namely, the plaintiff''s father and his uncle, filed written statements taking pleas similar to those taken in the former suit of 1907, namely, that the land in dispute was the lahkeraj of the defendants and that there was no relationship of landlord and tenant between the parties. The case after several adjournments was fixed for hearing on the 27th of May 1910, but on the 16th of May 1910 the father of the present plaintiff died and the appellants applied for the substitution of the plaintiff in place of his deceased father and named defendant No. 2, his uncle, as guardian ad litem. The defendant No. 2 was subsequently appointed guardian ad litem of the present plaintiff.

It has been held by the Courts below that no notice was served upon the natural guardian of the minor, viz., his mother, and that the uncle of the plaintiff did not give his consent for his appointment as the plaintiff''s guardian ad litem. Ultimately the plaintiff''s guardian defaulted and did not prosecute the suit, which was decreed ex parte on the 8th June 1912 in favour of the appellant.

The second decree concerned in this appeal which the plaintiff seeks to set aside was obtained in a suit brought by the appellants against the plaintiff-respondent and his uncle in 1913, being No. 542 of that year. This suit was for recovery of rent for the years in suit from the plaintiff and his uncle on the basis of the aforesaid ex parte decree, dated the 8th June 1912. The uncle was not made guardian in this case, but one Babu Mathura Prasad was appointed guardian ad litem for the plaintiff. The said guardian ad litem filed a written statement in consultation with the mother of the plaintiff impugning the claim of the appellant as false and fraudulent, yet the case of the plaintiff was not prosecuted and the Pleader guardian also made default, the result of which was that the suit was decreed ex parte against the plaintiff and his uncle on the 18th November 1914.

The Courts below have concurrently held that the guardian of the plaintiff in respect of the decree obtained in June 1912 was guilty of fraud and gross negligence and that absolutely no attempt was made by the guardian to defend the action of the appellants against the minor and to protect his interests. The lower Courts have also held that the requirements of Order XXXII, rule 3, clause 4, and rule 4, clause 3, were not complied with in the appointment of the guardian in the case. There is a farther finding that the defendants-appellants were guilty of fraud in obtaining the appointment of the guardian and the decree. On the basis of those findings of facts the Courts have concurrently held that the decree obtained by the appellants was tainted with fraud and liable to be set aside.

On behalf of the appellants it has been strenuously contended that the irregularities in the appointment of the natural guardian were not material in this case inasmuch as the family was a joint Mitakshara one in which the uncle of the plaintiff as the karta represented the interest of the minor and was, therefore, properly appointed a guardian by the Court. The contention is obviously without any substance. The guardian of an infant has been expressly named in the Mitakshara to be the parents and that the father has preference over the mother and after the death of the father, the mother is the natural guardian of the infant. The guardianship of an infant is irrespective of whether the family is joint or separate. The learned Vakil for the appellants has not been able to show any direct authority on the point for his contention that the mother in a joint Hindu family is not the natural guardian of the minor. Order XXXII, rule 3, clause 4, requires that the notice for the appointment of a guardian ad litem should be served upon the father "or other natural guardian of the minor," the reason being that the natural guardian is the best person to have a voice in the appointment of the guardian-ad litem. Again the first Court held that the minor''s father was separate from his uncle. This finding was not upset by the lower Appellate Court. Thus on the finding of the first Court the uncle was not the karta of the minor plaintiff. The mother was the only guardian of the minor. I agree with the view of the Courts below that the rule of the CPC has been contravened. Again there can be no doubt, and in fact it has not been seriously contested, that Order XXXII, rule 3, clause 4, has not been at all complied with in this case, inasmuch as no consent of the guardian was obtained for his appointment. This provision newly added to the present CPC is wholesome and is intended to safeguard the interests of the minor by obtaining the actual consent of the guardian ad litem for his appointment and thus ensuring that he has taken upon himself the onerous duty of defending the interests of the minor.

It has then been contended that the aforesaid non compliance with the provisions of the Code amounts only to irregularities which would not vitiate the decree obtained in the case. Reliance has been placed on 7 CWN 774 (Privy Council) , but that authority does not at all help the appellant. In that case it was expressly held that the interests were duly protected and all possible care that a diligent person would take was taken by the guardian and hence the mere irregularities in the appointment of the guardian would not vitiate the proceedings. But where the guardian is guilty of negligence and no attempt has been made by him to protect the interests of the minor, the decree so obtained will not bind the minor. This is reiterated in the recent case of Bhagwan Dayal and Another Vs. Param Sukh Das, . It has to be seen in the circumstances of the present case whether there has been any negligence on the part of the guardian appointed. The decision between the parties in the former litigation, dated the 13th January 1908, referred to in the early part of the Judgment, will clearly show that the appellants'' claim for rent against the father of the plaintiff was dismissed on contest. That was a good and substantial defence to be put forward in any Court of Justice The guardian in this case did not attempt to put forward that defence and to place the judgment in that case before the Court but suffered the case to be decreed ex parte against the minor. This is sufficient to show that there was the greatest possible negligence on the part of the guardian ad litem of the minor plaintiff. The appellants are guilty of the procurement of the appointment of such a guardian without any notice to the natural mother as required by law.

The result is that I agree with the view of the Courts below and I hold that the appellants are guilty of fraud and that the guardian is guilty of negligence and that the decree is not binding upon the plaintiff-respondent and is liable to be set aside.

The second decree of 1914 is a decree for rent based upon the fraudulent decree of 1912. The Pleader guardian of the minor plaintiff also did not produce the most valuable evidence afforded by the aforesaid decision of the inter-party case, dated the 13th January 1908. Then the mother of the plaintiff in this case was not at all informed and no notice was served upon her for the appointment of the proposed guardian, Thus the minor''s interests in this case also were not protected. This decree, based as it is upon the fraudulent decree of 1912, should also be set aside.

It is next contended by the learned Vakil for the appellants that the entire decrees cannot be set aside and that only the decrees against the minor should be set aside keeping them in fact as against the uncle of the minor, Anjani Kumar, who was also defendant in the aforesaid oases. The liabilities of the defendants under the decrees are indivisible. Therefore, the decrees are not liable to be split up, and if they are set aside as against one of the defendants, they must be set aside as against the other. The principle has been well laid in the case of Bhura Mal v. Har Kishan Das 24 A. 383; A.W.N. (1902) 76 and later in the case of Jadubansa Narain v. Mohunt Hari Charan Bharati 6 C.L.J. 226.

Lastly it is argued on behalf of the appellants that the suits should be revived and tried de novo on the plaintiff''s guardian ad litem having been properly appointed. I am unable to accept this contention. There is no provision in the CPC for such a procedure. The decrees in question are set aside as having been tainted with fraud and gross negligence of the guardian. The analogy of Order IX, rule 13, of the CPC and the other cognate rules in that Chapter does not apply when a decree is set aside in a regular suit on the ground of fraud. The applications for the setting aside of ex parte decrees and for the restoration of suits dismissed for default are made in the same Court and give rise only to miscellaneous proceedings in the same suit. The setting aside of an ex parte decree or of the order dismissing a suit for default naturally revives the original suit. Such cannot be the result when a final decree is set aside on the ground of fraud or gross negligence by means of a separate and independent suit.

The result is that all the contentions of the learned Vakil for the appellants fail and the appeal is dismissed with costs.