Judhistir Das vs Ekamra Chaudhury and Others

S.K. Ray, J.—Plaintiff is the Appellant and this second appeal is from the reversing decision of the lower Appellate Court by which the suit has been dismissed. The reliefs claimed in the suit were for a declaration that the decree passed in O.S. 267/50 was fraudulently obtained and is not binding on the Plaintiff and that the Plaintiff is in possession of the suit-property which is a house site measuring 0.11 decimals appertaining to plot No. 1218, and that such possession be confirmed, and the Defendants be permanently restrained from executing the impugned decree and taking possession of the same.

The disputed land is the ancestral property of the Plaintiff and of pro forma Defendants 5 to 9. The Plaintiff is staying in the house standing thereof. Defendants 1 to 4 instituted T.S. 267/50 for declaration of title, confirmation of possession, or in the alternative for recovery of possession of the suit-property claiming the same as part and parcel of their plot No. 1220 and for permanent injunction. This title suit No. 267/50 was decreed and title of Defendants 1 to 4 was declared. The Defendants in that suit, viz., the present Plaintiff and Defendants 5 to 9 were directed in that decree to remove their house materials within 15 days. The present Plaintiff was impleaded in the earlier suit as Defendant-5, and was described as a minor though he was major at the time. He was represented through his uncle though his mother was alive at the time. No notice of-the suit was served either on the Plaintiff or his natural guardian, the mother, and the decree was obtained in T.S. 267/50 by deliberately and fraudulently omitting to serve notice of the same on the present Plaintiff. There was thus no proper representation of the Plaintiff in that suit and the decree passed therein is not binding upon him. He came to know about the said suit on 4-9-1957 when he got notice in execution case No. 224 of 1958, in which Defendants 1 to 4 were levying the execution of the decree passed in T.S. 267/50. In the alternative, if for any reason the decree in T.S. 267/50 cannot be declared void or inoperative, then a declaration may be given that the Plaintiff has acquired title to the suit-property by adverse possession. This, in short, is the Plaintiff''s case.

The case of Defendants 1 to 4 is that the suit-property appertains to their plot No. 1220. In their earlier suit T.S. 267/50 the Plaintiff was correctly described as a minor and was represented through uncle-guardian who, however, despite service of notice of suit, did not appear. A pleader-guardian accordingly was appointed to represent him who filed the written statement, and contested the suit. Minor''s interest was thus substantially represented, and there was no fraud. It is further averred that the Plaintiff filed a petition under Order 9, Rule 13, CPC for restoration which was registered as Misc. Case No. 25/57. This being dismissed for default, he filed Misc. Case No. 240/59 for restoring Misc. Case No. 25/57. The second Misc. Case was also dismissed for default. The Plaintiff thereafter came up to this Court in C.R. No. 259/59. The High Court by order passed in C.R. 259/59 restored Misc. Case No. 25/57, on condition that the Plaintiff paid a sum of Rs. 25/- as costs to the Defendants 1 to 4 within certain time, and if there was default in such payment, the C.R. would stand dismissed, which means that Misc. Case No. 25/57 would not be restored. Costs were not paid within the time provided in the order passed in C.R. 259/59. In view of this, it is alleged that the suit is barred by the principles of res judicata. A technical plea was also taken that the suit is barred by limitation as the present suit was not instituted within three years from the date of knowledge of the passing of the decree in T.S. 267/50. This plea involves a question of fact namely, the date of knowledge of the passing of the decree in the earlier suit. If the date of knowledge is 4-9- 1957 as the Plaintiff says, then it is admitted by learned Counsel for the Respondents that the suit would be in time.

The trial Court decreed the suit on the following findings:

(i) The Plaintiff was a major in 1950 and had ceased to be a minor by the time of institution of T.S. 267/50.

(ii) No suit-notice was served on the Plaintiff personally in the earlier suit.

(iii) Even if it is held that the Plaintiff was a minor at the time of institution of the earlier suit, he was not properly represented by a lawful guardian who could have protected his interest.

(iv) The suit is not barred by limitation as the Plaintiff got knowledge of the decree passed in the earlier suit on. 4-9-1957, 4-9-1960 and 5-9-1960 being holidays, the present suit which was instituted on 6-9-1960 was within the period of limitation.

(v) The present suit cannot be held to be barred by principles of res judicata by reason of dismissal of Misc. Case No. 25/57, 80 proceeding for restoration of the earlier suit, as the matters in controversy in the present suit were not and could not be deemed to be finally heard and decided on merits.

(vi) The Plaintiff''s claim of possession of the suit-land is to be accepted, and

(vii) Plaintiff''s mother was alive when the earlier suit (T.S.N. 267/50) was instituted.

The lower Appellate Court reversed the decision of the trial Court by rendering the following findings. The Plaintiff was a minor at the time of institution of the earlier suit.

(ii) Even though the Plaintiff''s mother was alive at the time, Defendants 1 to 4 took all possible steps in that suit to see that the minor''s interest was properly represented and there being substantial representation of minor''s interest, the decree passed therein by a competent Court of law cannot be declared to be void.

(iii) The Plaintiff had knowledge of the earlier suit about 12 or 13 years back with reference to the date of deposition which was recorded on 8-7-1966, that is to say, that the Plaintiff had knowledge of the prior suit in or about the year 1954 when the said suit was pending. Accordingly the present suit is barred by limitation.

(iv) The suit is barred by the principles of res judicata.

The first contention of the learned Counsel for the Appellant is that the suit is not barred by res judicata on account of the dismissal of Misc. Case No. 25/57. Reliance is placed in this connection on a decision of the Supreme Court in the case of Shivashankar Prasad Shah and Anr. v. Baikunthnath Singh and Ors. 1969 S.C.D. 982. I will quote the head note (A) from that report. The passage runs thus:

Before plea can be held to be barred by res judicata, that plea must have been heard and determined by the Court. The dismissal for default of the judgment-debtor of an application filed by him u/s 47, CPC resisting the execution of the decree is not a final decision of the Court after hearing the parties and therefore does not operate as res judicata and he can raise that objection in a subsequent application filed by him.

learned Counsel for the Respondents has not been able to show any special features for distinguishing that Supreme Court decision and making the same inapplicable to the present case. I, therefore, agree with the learned Counsel for the Appellant that the present suit cannot be held to be barred by res judicata.

It is next contended be learned Counsel for the Appellant that the learned lower Appellate Court was in error in holding that the Plaintiff had knowledge of the prior suit in or about the year 1954. In reaching this conclusion, the lower Appellate Court has relied upon the evidence of p.w. 2 who has stated that about 12 to 13 years back the Plaintiff was telling him that there was a dispute going on about the house. Such type of evidence, it is contended, cannot establish that the Plaintiff had knowledge of the prior suit in about the year 1954. Knowledge about a dispute regarding the house is not the same thing as knowledge about the actual institution of the Suit. P.W. 2 has not expressly stated that the Plaintiff had knowledge of the prior suit. If that were so, be could have Stated it quite categorically. In view of this vague evidence it is not possible to concur in the finding of the lower Appellate Court that the date of knowledge of the Plaintiff regarding prior suit could be fixed in the year 1954. When that evidence is discarded the only other evidence which remains is that of the Plaintiff. According to him he bad knowledge on 4-9-1957. His subsequent conduct also corroborates that fact, because immediately thereafter he filed his application for setting aside the ex parte decree under Order 9, Rule 13. I would, therefore agree that the Suit is not barred by limitation.

It is next contended that assuming that the finding of the lower Appellate Court that the Plaintiff was a minor at the time of institution of the prior suit is correct, the provisions of Order 32, Rule 3, CPC being mandatory in nature and the same Dot having been complied with, the Plaintiff cannot be said to have been properly represented in the prior suit and as such the decree passed therein is null and void, and inoperative against him will now quote the relevant portions of Rule 3 of Order 32, Code of Civil Procedure.

Order 32.

Rule 3, Sub-rule (4):

No order shall be made on any application under this rule except upon notice to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and after bearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

Considering the scope of the provisions extracted above, the Patna High Court in the case of Ramachandra Pd. Singh and Others Vs. Rampunit Singh and Others, , has said that the provisions of Order 32, Rule 3(4) are mandatory and that where notices to proposed guardian and to minor are not served, appointment of a guardian ad liter of minor is without jurisdiction and since the minor is not properly a party to the proceeding, the judgment rendered or order passed against him is without jurisdiction and nun and void.

To the same effect is the decision in the case of Nirmal Chandra Ray and Others Vs. Khandu Ghose and Others, , where it has been said that the provisions of Sub-rule (4) of Rule 3 are mandatory and a decree obtained against the minor in complete disregard of this provision is completely without and void ab initio.

The order-sheet of the prior suit was called for and perused. It appears therefore that some notice under Order 32 Rule 3 was issued and that notice was not personally served, but such service was effected by affixture as it was refused. Then on 13-12-1950 the Plaintiff filed a petition for appointment of a Court-guardian for minor Defendant-5, which was obviously an application envisaged in Sub-rule (2) of Rule 3 of Order 32, Code of Civil Procedure. On the basis of this application a pleader-guardian was appointed. Since the first service after registration of the plaint must obviously have been on the recorded uncle-guardian of the minor and before any order is passed on this application for appointment of a Court-guardian the requirements of Sub-rule (4) of Rule 3 of Order 32 must be complied with. It appears from the order-sheet that upon such application for appointment of a Court-guardian, the Plaintiff was directed to deposit the guardian-fee and thereafter the Court-guardian was appointed. This is clear from a perusal of the orders dated 13-1-1950 and 10-1-1951 passed in T.S. No. 267/50. Sub-rule (4) of Rule 3 requires that notice of the application for appointment of Court-guardian shall be simultaneously given to the minor and, in the absence of the guardian of the minor declared by competent authority in that behalf, to the natural guardian of the minor and after hearing objections, if any, which may be urged on behalf of any person so served with notice, appropriate order may be passed. This has not been done.

The finding in this case is that the minor''s natural guardian, his mother, was alive at the time, but she was not served with notice of this application. In view of the legal principles and the facts stated above, I am satisfied that the decree passed in T.S. 267/50 so far as the present Plaintiff was concerned was nun and void, and therefore, not binding upon him.

A contention was raised that the finding of the lower Appellate Court that the Plaintiff was a minor at the time of the prior suit is unsustainable. However, in view of the aforesaid conclusions, it is unnecessary to go into this fact. I am therefore, satisfied that the decision of the trial Court was correct. The judgment and decree of the lower Appellate Court are accordingly set aside.

It appears that issues 6 and 8 relating to the merits of the case of the respective parties have not been adjudicated upon by the Courts below. Issue No. 6 comprises within it the Plaintiff''s case of adverse possession. They are live issues as between the Plaintiff and the Defendants. I feel that those issues should also be adjudicated upon in this litigation and the parties should not be driven to file a fresh suit regarding the same. I would, therefore, while maintaining the decision of the trial Court regarding issues 1, 2, 3 and 4, remit the entire case back to him for deciding the other issues specially issues 6 and 8, and to dispose of the case in accordance with law. The parties will be at liberty to adduce evidence on those issues.

The appeal is accordingly allowed and remanded.

The Plaintiff shall be entitled to his costs of this Court.