H.N. Bharadwaj vs Ganpat Rai Seraugi and Others

P.K. Goswami, C.J.—This civil revision is directed against an order passed by the learned Munsiff, Gauhati, restoring to file the Plaintiffs'' suit which was earlier dismissed for default of the Plaintiffs.

The Plaintiffs are one Ganpat Rai Seraugi, Ratanlal Seraugi and a minor Bhagchand Seraugi represented by his father Chandmal Seraugi. The Plaintiffs were absent on the date fixed for hearing and the suit was dismissed for their default. Thereafter they filed an application under Order IX, Rule 9 of the CPC for restoration of the suit and in spite of objection by the Defendant the suit was Restored. Hence this revision.

The learned Munsiff found that the ground of illness of Plaintiff No. 1 was not established and that Plaintiff No. 2 was a student and prosecuting his studies in Jaipur (Rajasthan). It was alleged by the Plaintiffs that the Plaintiff No. 3 being a minor was represented by the next friend who was away in Rajasthan and hence there was sufficient cause for his not appearing in court on the date of hearing. The learned Munsiff did not consider Chandmal Seraugi''s absence in Rajasthan to be sufficient cause for his non-appearance. All the same the Court having found that the interest of the minor has suffered for the negligence of his next friend, it was held to be a sufficient ground for restoration of the suit. Since tho minor''s interest is interlinked with the others, the whole suit was restored.

Mr. Das, die learned Counsel for the Petitioner submits that the Court having held that there was no sufficient ground for restoring the suit in regard to Plaintiffs 1 and 2, had no jurisdiction under Order IX, Rule 9 to restore the entire suit on the ground that the interest of the minor has suffered for negligence of his next friend. The learned Advocate-General, Assam, submitted that this application u/s 115, CPC is not maintainable as there is no error of jurisdiction when the learned Munsiff held that there was sufficient ground for restoration of the suit. Mr. Das, on the other hand, submitted that since according to the learned Munsiff there was no sufficient cause and the particular cause given by him is not ''sufficient cause'' within the meaning of Order IX, Rule 9, the learned Munsiff had no jurisdiction to restore the suit. In support of this submission, Mr. Das relied upon several decisions of the High Court. He drew my attention to the decision in Vaithilinga Naidu, represented by next Friend, Subbammal and Another Vs. Devanai Ammal and Another, and relied on the following passage:

If the non-appearance of the next friend is bona fide or in other words for reasons which would be held to constitute sufficient cause if he were conducting his own suit there is no controversy that Order 9, Rule 9 can be invoked on behalf of the minor Plaintiff.

If the non-appearance of the next friend is the result of collusion between him and the Defendant or if the next friend assumes, for whatever reason, an attitude of hostility against the minor Plaintiff and consequently refrains from appearing there may be "sufficient cause" for the restoration of the suit. (Paras 12 and 13) "Where a next friend is negligent or deliberately obstructive and the suit is dismissed for his non-appearance there is, in our opinion, no sufficient cause for such non-appearance within the meaning of Order 9, Rule 9 and therefore no ground for restoration

The learned Advocate-General, on the other hand, relied upon Venkatara-mayya v. Prakasa Rao AIR 1957 AP 293, which is in agreement with the earliest Calcutta decision on the question in Kesho Pershad v. Hirday Narain, (1880) 6 Cal LR tio, and reads the following passage:

In our opinion, where the Court is satisfied that the guardian has in not making his appearance neglected his duty to his ward as well as to the Court, it is incumbent upon the Court to protect the interests of the minor from the consequence of such negligence. The suit must be restored or the ex parte decree set aside, and a fresh guardian or next friend appointed." (Para 3) To this Mr. Das replies, by citing a decision of the same Court in Chodavarapu Satyanarayana being minor represented by next friend Vinnakota Rajagopalarao Vs. Chodavarapu Krishnamurthy and Others, , wherein both the aforesaid decisions Vaithilinga Naidu, represented by next Friend, Subbammal and Another Vs. Devanai Ammal and Another, were noticed. The Court observed:

In every case in which a suit is dismissed for the laches of the next friend, it cannot be said that there is a sufficient cause for the restoration of the suit within the meaning of Order 9, Rule 9, Code of Civil Procedure.

This Court agreed with the view expressed in Vaithilinga Naidu, represented by next Friend, Subbammal and Another Vs. Devanai Ammal and Another, . It is necessary to point out that all the above three decisions were given under the appellate jurisdiction of the High Court and not on the revisional side. When this was pointed out to Mr. Das, he frankly stated that he has only one case u/s 115, CPC and that is in Kevi Pillai v. Velayudhan Pillai AIR 1954 TC 352 , where the learned Single Judge held that since both the next friend and the Plaintiff were negligent in the conduct of the case, there was no sufficient cause either for restoration of the suit Tinder Order 9, Rule 9, or for condonation of delay u/s 5 of the Limitation Act. The Court was in agreement with the view expressed in Vaithilinga Naidu, represented by next Friend, Subbammal and Another Vs. Devanai Ammal and Another, that negligence of the next friend would not be sufficient cause within the meaning of Order 9, Rule 9, CPC Code. The order of restoration was therefore set aside in revision.

Clearly, the question whether u/s 115, CPC the existence or non-existence of sufficient cause is open for scrutiny or not did not come up for consideration in this Travancore-Cochin case. Besides, the Court in that case found both the next friend and the Plaintiff were negligent and that the Plaintiff had attained majority while the suit was pending trial but he did not choose to move for the removal of the next friend or to conduct the case himself. Therefore, even on merits, the question of negligence of the next friend in that case might not have been of serious import. In that context for the reasons given for the decision in the Travancore-Cochin case, it may not be an authority for the proposition which Mr. Das is now trying to establish. I am clearly of opinion that revisional jurisdiction of this Court is not attracted to "the instant case. If any authority is needed. I may refer to a recent decision of the Supreme Court in D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, wherein the following'' passage is apposite:

The mass of reported cases only serve to show that the High Courts do not always appreciate the limits of their jurisdiction under this section. The legal position was authoritatively laid down by the Privy Coun-r cil as far back as 1894 in Bajah Amir Hus-san Khan v. Sheo Bakh Singh (1883) 9 Ind App 237. The Privy Council again pointed out in Balakrishna Udayar v. Vasu deva Aiyar (44 Ind. App. 261) : (AIR 1917 PC 71 ) that this section is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved. This view was approved by this Court in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, and has since been reaffirmed in numerous decisions.

Even while therefore in exercising the appellate power this Court may be interfering with an order with regard to existence of sufficient cause it is not open in revision u/s 115 CPC to entertain such a plea and come to a contrary conclusion either in law or in fact. The error must relate to an error of jurisdiction. As the Supreme Court held in the above decision.

The position thus seems to be firmly established that while exercising the jurisdiction u/s 115, it is not competent to the High Court to correct errors of fact however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the dispute itself.

Clause (c) also does not seem to apply to the case in hand. The words "illegally'' and "with material irregularity" as used in this clause do not cover either errors of fact or of law, they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may, in our view, relate either to breach of some provision or law or to material defects of procedure affecting the ultimate decision and not to errors either of fact or of law, after the prescribed formalities have been complied With.

Under Order-IX, Rule 9, Code of Civil Procedure, the Plaintiff has to satisfy the Court that there was sufficient cause for his non-appearance in Court and if the Court is satisfied on some reasons, it is not permissible in revision to interfere with such a discretion so exercised by the Court. There therefore, no substance in this revision. The petition is dismissed. I would, however make no order as to costs.