Kathasawmy Chettiar and Another vs Ramachandran and Another

Curgenven, J.—These two revision petitions are preferred against two orders of the District Munsif of Coimbatore (1) discharging a

guardian ad litem and appointing another, and (2) setting aside an ex parte decree. The Plaintiffs, who are the petitioners in both the petitions, sued

three brothers to recover some money said to be due in respect of a deposit made with their deceased father. The 1st Defendant was a major and

the 2nd and 3rd Defendants were minors. The Plaintiffs applied in the ordinary way for appointment of a guardian ad litem to them, proposing first

the mother and later the brother, that is, the 1st Defendant. The mother declined to act but agreed that her son might act and the 1st Defendant

undertook the duties and was appointed. In the suit he took time to file a written statement but in point of fact he did not file one and made no

defence either for himself or on behalf of his minor brothers and the suit was decreed ex parte. Then followed the two applications out of which

these petitions arise.

It was alleged that the brother had failed in his duties as guardian and accordingly the mother applied to be made guardian and at the same time

application was made to set aside the ex parte decree. The learned District Munsif has granted both applications. The substantial one relates to

setting aside the decree and in the order relating to this he has given his reasons for finding that the 1st Defendant had interests adverse to his

brothers and had failed to discharge his trust with regard to them by defending; the suit. He accordingly concluded that there was no representation

of the minors and that the ex parte decree against them is invalid and he therefore set it aside.

This is not a logical way of putting the matter. If the ex parte decree was, as I understand the learned District Munsif to have held, void, there

was no need to set it aside. On the other hand if he did set it aside he must have found that one of the reasons laid down in Order 9, Rule 13 of the

CPC for adopting such a course existed. There are various early decisions which held that the reasons which this rule requires for setting aside an

ex parte decree are not the only ones, and that the Court has inherent power, in appropriate circumstances, to set aside an ex parte decree even

though summons has been duly served and it has not been shown that the defendant has not sufficient cause for not appearing. The question later

came before a Full Bench in Neelaveni v. Narayana Reddi I.L.R.(1919) Mad. 94 : 37 M.L.J. 599 and it was there held that the Court has no

power, apart from the provisions of Order 9, Rule 13, Civil Procedure Code, to set aside an ex parte decree passed by itself. Accordingly, such

an early decision as that of Oldfield, J. in Adyapadi Ramanna Udpa and Others Vs. Krishna Udpa and Others, , holding on general grounds that

the gross negligence of the next friend of a minor plaintiff is sufficient reason for setting aside an ex parte decree can no longer be regarded as good

law. It has been argued in the present case that the District Munsif has not recorded any finding as to whether the minors had sufficient cause for

not appearing and allowing an ex parte decree to be passed and that that omission ipso facto renders the order liable to revision. I think that if

materials exist in the record and in the Lower Court''s order for drawing the conclusion that such sufficient cause did exist it is not desirable to

interfere with the order although it may have been passed on incorrect grounds.

The question accordingly arises whether the default of a guardian who wrongfully allows the claim to be decreed ex parte will constitute

sufficient reason for the non-appearance of the minors within the terms hi the rule. The case is in many respects analogous to that of an advocate

who has failed to put in an appearance after undertaking to represent a party. I have no doubt that if it is a real case of default and the party is in no

respect to blame this would be accepted as '' sufficient cause '' within the rule. The case of a minor is in some respects stronger, as he has neither

the option to put in an appearance himself nor power to choose his own representative. He has been declared ex parte in circumstances over

which he had no control whatever. The position has been excellently put in a case reported on behalf of the respondent in Kesho Pershad v.

Hirday Narain (1880) 6 C.L.R. 69 by Mark by and Mitter, JJ. That too was an instance of the 1st defendant--in that case the mother--appearing

personally and as guardian of the minor sons, and allowing an ex parte decree to be passed. Application was made to set it aside on the ground

that summons was not duly served, but this ground failed.

Nevertheless the learned Judges said that it could be put upon the alternative ground that sufficient cause existed for the failure of the minors to

appear. They observe:

We think that we may legally and fairly deal with this matter as-regards the minors under the clause which provides that if the defendant be

prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court should pass an order to set aside the judgment.

It is not to be expected that the defendants themselves could have appeared in-person and they had a right to Expect that their lawful guardian

would take the proper, and what in this case was obviously a necessary, step to protect their interest. By a neglect of duty for which they are not in

any way responsible, no one appeared on their behalf when the case was called on.. We think it would be contrary to justice to hold that they are

responsible for ''heir non-appearance. We think they have a right to say in the words of the Act, that they have been prevented by sufficient cause

from appearing when the case was called on. That being so, whether the summons was served or not, the Court below had power to set aside

these decrees.

This judgment has been referred to as one example of sufficient cause for non-appearance by Seshagiri Aiyar, J. in the Full Bench case already

referred to, where he says at page 104:

A suggestion was made that the default of a guardian of a minor defendant will not be covered by this Clause (the clause relating to sufficiency of

cause). There is no reason for limiting the language of the clause in that way. Further there is the authority of Kesho Pershad v. Hirday Narain

(1880) 6 Cal. L.R. 69, against this suggestion.

I think accordingly that the finding of the learned District Munsif that the 1st Defendant had, betrayed his trust as guardian is sufficient to bring

the case within the terms of Order 9, Rule 13 of the CPC and that the order setting aside the decree can be justified on these grounds.

A further point is taken that the application is time-barred. This point does not seem to have been taken, and if at all taken does not seem to

have been pressed in the Lower Court. Having regard to the fact that Section 5 of the Limitation Act applies to such petitions I do not think that an

order of this kind should be revised on this ground.

The order of the learned District Munsif appointing the mother as guardian in the place of the son necessarily follows from his finding of the

existence of an adverse interest in the son. The Civil Revision Petitions are accordingly dismissed with costs. One Vakil''s fee.