Krishnammal (Deaf and Dumb) By Next Friend Narasimha Iyer vs Adivaraha Iyengar

Ramakrishnan J.

In the present case, the Petitioner was suffering from a disability being deaf and dumb, and had to be represented by a next friend. The next

friend was absent, at the time of the hearing on 17th August 1960, and the application was dismissed for default. An appeal was filed before the

District Judge to set aside the dismissal order. It was alleged that the next friend was just outside in the court compound and was expecting his

Vakil, who had gone to an adjacent office, to come back when the case was called. The lower Court rejected the explanation, and dismissed the

appeal. This petition is filed against the above order.

It was pointed by the learned Counsel for the Petitioner that, when the party is a minor or a person under a disability represented by a next

friend, and the next friend is absent through whatever cause it might be, at the trial, then that fact alone is a sufficient reason for setting aside an ex

parte decree pasted against the minor or the person under disability, for setting aside an order of dismissal of the suit in the case of the minor-vide

the decision of Beasley C.J., in Venkataratnam v. Nagappa (1934) 67 M.L.J. 387. Panchapakesa Ayyae J., in Siva Narayana v. Nagasubamma

A.L.R. 19 Mad. 60 has also stressed, the view that in such a case, the guardian''s negligence to appear and defend on behalf of the minor would

be sufficient cause under Order IX, Rule 13 of the Code of Civil Procedure. Panchapakesa Ayyak J. went so far as to say that the claim put

forward before him that the law should make no discrimination in favour of minors was not acceptable. These decisions show that in proper cases,

where a guardian or next friend fails to make his appearance on behalf of the minor,"" and as a consequence an ex parte order is passed against the

minor, the negligence of the guardian or next friend could be validly urged in subsequent proceedings, so as to grant relief to the minor, by having

the ex parte order set aside. This aspect of the matter has not at all been referred to in the order of the lower Court. It had adopted the position

that where the guardian was negligent in making his appearance that would by itself be a sufficient reason justifying a default order, even though it

has the effect of penalising the minor or the person under disability for the guardian''s negligence. In view of the above decisions, I am of the

opinion that the order of the lower Court involves a material irregularity, in that it has not considered the relevant legal principles where the interest

of a person under disability is involved, as a consequence of the default of the guardian or next friend.

In the result, I allow the revision petition, and set aside the order of the lower Court. Interlocutory Application No. 510 of 1960 will, therefore,

stands allowed. In the circumstances of the case, here will be no order as to costs in this revision petition.