Sham Singh vs Jaswant Singh and Others

This petition for revision stands concluded by the decision of the Madras High Court in Rajagopala Pandarithar, represented by his next friend Anni Ammal Vs. Muthukumara Chettiar, . In fact, the entire position has been misunderstood by the Courts below. The suit was by a minor plaintiff through a guardian. The Court directed the guardian to appear and persistently the guardian refused to appear. On the relevant date, the counsel for the guardian was present and because the guardian did not appear the suit was dismissed. Now, this could not be done. The proper course for the Court was to remove the guardian and appoint an other guardian. It goes without saying that the Court has to safeguard the interests of a minor and cannot act in a manner to prejudice his interests.

Mr. Sarhadi, learned counsel for the respondent, based himself on Amar Singh v. Kishan Singh AIR 1950 P&H 28 and urged that the order is justified on the basis of that decision. In fact, that decision has not the remotest bearing so far as the present controversy is concerned. In that case the guardian did not appear at the date of hearing. There was no counsel representing the minor and therefore, the suit was dismissed for default. In the present case, the counsel was very much before the Court and the suit was dismissed not because the minor was not represented but because the guardian who was asked by the Court to appear refused to attend court. In fact, the Court penalised the minor instead of penalising the guardian and that could not have been done.

Mr. Sarhadi then argued that sufficiency of cause is a question of fact and this Court could not interfere in revision. As the matter stands, the sufficiency of cause is not of any relevance. The initial order of the Court was void because it was wholly without jurisdiction. Therefore, this contention must fail.

For the reasons recorded above, I allow this petition, set aside the orders of the Courts below and direct the trial Court to proceed with the suit from the stage from which it was dismissed. The parties are directed to appear before the trial Court on 21st of December, 1970. There will be no order as to costs.

Revision allowed.