Kandaswami Gounder vs Vellayya Gounder and others

Srinivasan, J.—An application to set aside an ex parte decree against the defendant was ordered on terms. The trial Court did not accept

the plea that the first defendant, the petitioner, was sick and unable to appear in the Court on the date set down for the hearing. It specifically held

that the plea of illness was merely a ruse invented to justify the absence. On that finding the petition should have been dismissed. But the trial Court

thought that as it was a remanded suit which had varying fortunes in the earlier stages and the plea of the defendants was one of discharge, the

defendant should not be denied an opportunity of establishing that plea. It observed :

At the same time, I do not want to put the respondent plaintiff to unnecessary hardship by being dragged into Court at the sweet will and pleasure

of the petitioners. It is also seen that apart from the first petitioner, the interests of the minor petitioners, who are defendants 2 to 4, are also

involved in this suit. As such, though I have held that the petitioners have no valid or sufficient cause for their absence on 2nd December, 1963, I

direct that the ex parte order shall be set aside and the suit shall be restored to file on grounds of equity, if the petitioners show their bona fides by

depositing into Court the costs of the plaintiff in the trial Court as well as in the appellate Court and a day costs of Rs. 20 to the respondent.

This direction was not complied with, but the first defendant took the matter in appeal. The learned Additional District Judge found that when once

it had been held that the first defendant had not established sufficient cause for his non-appearance, O. 9, R. 13, C.P.C., makes no provision for

an order to be passed on the principles of equity. Nevertheless, he did not choose to interfere with the direction. As the appellant had not availed

himself of the opportunity given by the trial Court, the appeal was dismissed.

In this civil revision petition, it is contended that the order refusing to set aside the ex parte decree is vitiated.

In the suit, the minor defendants were represented by their mother as guardian. It is common ground that none of the petitioners appeared on the

date of the suit and only the first defendant made an application for setting aside the ex parte decree. Though the minor defendants were separately

represented, no reason was advanced for their failure to appear on the date of the hearing.

Mr. Appu Rao, learned Counsel for the petitioner, first defendant, contends firstly that where minors are parties to the suit, the Court should

take a more tolerant view. He would in fact put it in stronger terms and urge that it is the duty of the Court to protect the interests of the minors by

setting aside the decree. Doraiswami Pillai v. Thangasami Pillai 27 Mad. 377 has been cited. In that case, the next friend of a minor who was

conducting the suit withdrew the suit without the leave of Court. The order made on the application to strike the case off the file was set aside by

the High Court. The learned Judge observes that a withdrawal of a suit by the next friend without leave of the Court will be voidable at the instance

of the minor. In that case, a review application appears to have been filed, but the trial Court rejected that application overlooking the provision

that the Court is bound to adjourn the suit when it finds that the next friend does not do his duty in relation to the suit and the interests of the minors

being prejudiced. In Venkataratna v. Nagappa 67 M.L.J. 387 = 40 L.W. 474, certain minor plaintiffs were represented by their mother as the

next friend and the suit came on for trial. The pleader for the plaintiffs was not ready and an order was made by the District Munsif dismissing the

plaintiff''s suit. On an application being made for setting aside the dismissal order, on the ground that the mother of the minors was ill and could not

be present, the District Munsif upheld the dismissal, holding that no sufficient cause had been made out. The matter came to the High Court and the

learned Chief Justice pointed out that the minions could not theme selves appear and there was no reason for holding that the minor''s interests

should be prejudiced by the unfortunate circumstances of the mother''s illness. Even if the mother was not ill and she was merely negligent,

nevertheless, the minor''s interests ought not to be allowed to suffer by reason of the negligence of the mother. He observed: ""It appears to me

therefore that the position in justice is that if there are minor plaintiffs and defendants who are represented, as they must be by a next friend and the

next friend 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 plaintiff.

The decisions have been pressed by Mr. Appu Rao, the learned Counsel.

The facts of the present case are entirely different. The first defendant is the father of the minor defendants and defendants 2 to 4 were not

represented by him but by their mother as the guardian. The first defendant''s illness was put forward as a plea for his absence. The minors, though

represented by a different person, were not also present by their guardian or by Counsel on the date of the hearing. No reason was in fact

advanced for such absence except that the mother had to attend upon the first defendant who was ill. Both the Courts have found that the illness

pleaded is wholly untrue, and if so, it really leaves the guardian of the minors with no excuse for her absence on the date of the hearing. Had it been

a case where the minors through a different guardian or next friend put forward the plea that their guardian was negligent and sought for setting

aside the ex parte decree, the position might well have been different. As the trial Court remarks, the suit had been pending from 1959 and had

once been remanded and the dilatoriness on the part of the defendants was rightly commented upon adversely by the trial Court. Nevertheless, the

trial Court was aware that the interests of the minors had to be protected and made a conditional order. Mr. Appu Rao contended that this

conditional order was very onerous. I am not prepared to agree. The cases cited have no direct application and the order of the Court below does

not suffer from any illegality which invites the re-visional jurisdiction of this Court. It will, however, be open to the petitioner to approach the trial

Court and seek extension of time within which to comply with the directions. The petition is dismissed.