Vaithilinga Naidu, represented by next Friend, Subbammal and Another vs Devanai Ammal and Another

Govindarajachari, J.—This is an appeal against the order of the District Judge of South Arcut refusing to restore O.S. No. 2 of 1944 which

was dismissed on 9th January 1945. The plaintiffs were minors represented by their paternal aunt as their nest friend. The suit was for a declaration

that the Court sale in O.S. No. 16 of 1929 on the file of the District Judge of South Arcot of the house described in the plaint is void and not

binding upon the plaintiffs and for other reliefs. The suit was dismissed for default once previously on 24th August 1944. It was subsequently

restored and earne on for trial on 23rd November 1944. The plaintiffs'' next friend alleges that she took steps for the hearing on that date. The suit

was, however, adjourned from 23rd November 1944 to 8th December 1944. The next friend admits that she did not take steps for 8th December

1944 but adds that her witnesses came for that hearing, the learned District Judge states in his order that she was not ready for the hearing on that

date presumably on the strength of his notes. This receives some support from the statement of the plaintiffs'' next friend in the courae of cross-

examination that she did not take steps for the hearing on 8th December 1944, because she thought the witnesses would come. There is, however,

no dispute that she took no steps for the hearing on 9th January 1945 to which date the suit stood adjourned from 8th December 1944 and that

the witnesses did not come on 9th January 1945. The suit was accordingly dismissed. The principal ground on which restoration was sought was

that one Arumuga Mudali, who was examined as P.W. 2, was attempting to bring about a compromise between the parties, that he fell ill on 8th

January 1945, that he did not come either on 8th January 1945 or on the succeeding day and that the next friend made no arrangements for the

conduct of the suit because she believed that the suit would be reported as settled on 9th January 1945. P.W. 2 admits that neither the plaintiffs

nor the defendants asked him to mediate and that he himself volunteered to do so. He states further that the attempt at compromise did not fructify

and that he told P.W. 1, the next friend of the plaintiffs, ten days before the hearing on 9th January 1945 ""that the talk had not made progress."" We

share with the learned District Judge his doubt whether the allegation that P.W. 2 was trying to bring about a settlement is true. The learned District

Judge says on his recollection of what happened in Court on 9th January 1945, that no mention of a compromise was made on that date. He

points out that the lawyer who was previously appearing for the plaintiffs was dropped and a new lawyer engaged to argue the petition for

restoration. The learned Judge surmises, not without justification, that this was done because the lawyer who originally represented the plaintiffs

would not put forward the story of negotiations for settlement or that any mention of such settlement was made in Court on 9th January 1945

because he knew that no such thing had taken place. There is no doubt a curious statement or the defendant that he stated on 9th January 1945,

evidently in Court, that there was no attempt at compromise at all. The appellants'' counsel argues that there was no necessity for such a denial if

no reference in Court was at all made to a contemplated compromise.

However that may be, it is not possible to say on the present material that it was stated to the Court on 9th January 1945 that a compromise

was in progress and assuming that such a statement was made that there was really any attempt at settlement.

Assuming that P.W. 2 was attempting to bring about a settlement we have it from him that the plaintiffs'' next friend was apprised by him ten

days before the hearing, of the real situation that the talk had made no progress whatever. There is therefore no justification for the plaintiffs'' next

friend to omit to take steps for the hearing on 9th January 1945. We agree with the learned District Judge that it has not been made out that there

was sufficient cause for the non-appearance of the plaintiffs when the suit was called on for hearing on 9th January 1945 and that the dismissal of

the suit cannot therefore be set aside.

It has however been argued by the appellants'' advocate that even on the assumption that the next friend was negligent in so far as she failed to

take any steps for the hearing on 9th January 1945 the suit must be restored as such negligence itself would be a sufficient cause within the meaning

of Order 9, Rule 9, Civil P.C. He argues that where the plaintiff is a minor and cannot consequently appear himself without a next friend, the

negligence of the next friend on record must itself be regarded as sufficient cause for the plaintiffs'' non-appearance within the meaning of the rule

and that otherwise the interest of a minor plaintiff will be seriously jeopardised. The result of this argument would be that in every case where the

plaintiff is a minor the suit must be restored ipso facto and indeed there would be no purpose in or justification for dismissing such a suit because on

this line of reasoning, in no conceivable contingency can the dismissal be maintained. When this was pointed out to the learned counsel he frankly

stated that he had to meet that situation but maintained that his argument is supported by certain decisions to which we shall presently refer.

The implications of this contention have to he closely examined, firstly from the point of view of the Court and its control over the suits on its file.

If the appellants'' argument is to be accepted, when a Court finds that the plaintiff is a minor it can do nothing except adjourn it when the next friend

does not appear; in fact, it must go on adjourning the suit till the next friend chooses to appear. He may be negligent, he may even be obstructive

but the Court has no other alternative and cannot dismiss the suit because whether the next friend is merely negligent r even positively obstructive,

that would still be sufficient cause for the plaintiff''s nonappearance within the meaning of Order 9, Rule 9 and there is no point therefore in

dismissing the suit if it must automatically be restored. The suit will therefore continue to be on the file of the Court till the plaintiff attains majority

when alone the plaintiff can be compelled to prosecute it with due diligence. It is said that the Court can, in such a case, remove the next friend on

record and appoint another person instead. This, however, does not solve the difficulty. It is, as is well-known, difficult to pursuade the relations of

a minor plaintiff, particularly when a frivolous litigation is started on his behalf, to cooperate with the Court actively in bringing up the suit

expeditiously for trial. If the new next friend repeats the tactics of his predecessor the Court will again have to put off the hearing from time to time.

If an officer of the Court is to be appointed next friend it is obvious that he cannot have the necessary funds or necessary information or resources

to conduct the suit satisfactorily.

The obvious result of this is that the Court is reduced to a position of helplessness and can only look forward to maintaining on its file several

suits by minors a substantial number of which perhaps are frivolous and speculative. In fact the more speculative the suit the greater the chance of

the next friend deliberately protracting the proceedings.

From the point of view of the defendant the consequences are not less disastrous. His title is threatened but there is no way in which he could

ask the Court to adjudicate upon it till the plaintiff attains majority or till his next friend chooses to bring the suit on to trial. The defendant cannot

transfer the property if it is immovable property so long as the suit is pending, as such transfer will be affected by lis pendens u/s 52, T.P. Act. A

transferee will take the risk of obtaining a transfer only if the property is transferred for something much below its proper price. It is easy to

perceive that this would encourage the levy of blackmail if only a minor could be put forward as a sort of stalking horse. It is therefore to be

considered whether the construction contended for by the appellants'' counsel with all the consequences which are likely to result therefrom is

enjoined by the decisions.

Before dealing with the authorities cited on behalf of the appellants it is necessary at the outset to point out that in one respect at least there is a

difference between the case of the next friend of a minor plaintiff and that of the guardian ad litem of a minor defendant. The filing of a suit by a

person acting as the next friend of a minor plaintiff may be regarded as an assertion by him that the plaintiff has a fair case to be tried and if the next

friend takes no steps for the prosecution of the suit his default would raise a presumption of negligence on his part. In the case, however, of a

guardian ad litem of a minor defendant there is no obligation on his part to defend a suit if he is satisfied that there is no valid defence to put

forward. His failure therefore to contest the suit cannot, without more, be relied on as raising a presumption that he is negligent. It seems to us that

this distinction has to be borne in mind in considering the relative efficacy of the remedies open to a minor plaintiff whose suit is dismissed for

default and a minor defendant against whom an ex parte decree is passed. It must at the same time be observed, that the language of Order 9, Rule

9, which requires that the Court should be satisfied that there was sufficient cause for the nonappearance of the plaintiff and that of Order 9, Rule

13 which requires that the Court should be satisfied that the defendant was prevented by sufficient cause from appearing when the suit was called

on for hearing may be treated as substantially the same notwithstanding a slight verbal difference and have in fact been treated in the decisions as

laying down substantially the same standard and requirement.

The appellants'' principal reliance was on the decisions in Dorasami Pillai v. Tungasami Pillai 27 Mad. 377; Kafka-swami Chettiar v.

Ramachandran AIR 1934 Mad. 428 and Venkataratnam v. Nagappa AIR 1934 Mad. 616. In the first of these cases the facts were as follows:

When a suit filed on behalf of a minor plaintiff by his mother as his next friend came on for final hearing after several adjournments, a junior vakil

who was specially engaged on that very day, apparently in virtual supersession of the senior who was present in Court, presented a petition stating

that the plaintiff''s next friend was unable to conduct the further proceedings in the suit by meeting the necessary expenses and to prove that the

plaint properties belonged to the plaintiff and praying that the Court might be pleased to strike the case off the file without further proceedings. The

Subordinate Judge asked the junior vakil whether he was going to withdraw unconditionally or whether he wanted to withdraw with permission to

bring a fresh suit and got the reply that he did not want such permission. It was quite apparent that the Subordinate Judge felt that the next friend

was acting most prejudicially to the interests of his ward. Under the impression that he was bound to allow the withdrawal and dismiss the suit, and

that he had no jurisdiction to adjourn the suit in the interests of the minor plaintiff, the Subordinate Judge granted the application on that very day

and ordered the plaintiff to pay the defendants'' costs. A review application was subsequently filed alleging that the plaintiff''s mother was not aware

of the contents of the vakalatnama or of the withdrawal petition, both of which bore her mark, till some time after the suit itself was withdrawn.

Prom the evidence of the junior vakil it was established that he was engaged by the next friend''s father. There was also the evidence of the next

friend''s father and one to the attesting witnesses to the vakalatnama that the withdrawal was brought about by defendant 1 himself, and that the suit

was withdrawn because of the promise made by defendant 1 to give the plaintiff his share after his suit was withdrawn. The petition for review was

dismissed. Bhashyam Aiyangar J. points out that u/s 462, Civil P.C., 1882, corresponding to Order 32, Rule 7, Sub-rules 1 and 2 of the present

Code, the withdrawal of a suit by a next friend in pursuance of a compromise entered into with the defendant without leave of the Court will be

voidable at the instance of the minor. Apart from this aspect of the case which would have necessitated an inquiry into the question whether the

withdrawal was in fact in pursuance of the promise which the defendant was alleged to have made, the learned Judge held that the Subordinate

Judge should not have, in view of what had happened before him, allowed the unconditional withdrawal of the suit. It is in dealing with the case in

this light that the learned Judge observes that ""a suit relating to the estate of an infant and for his benefit has the effect of making him a ward of

Court."" He then goes on to refer to Section 446 of the Code of 1882, corresponding to Order 32, Rule 9 of the present Code, which permits the

removal of a next friend who does not do his duty. In view of what actually transpired at the time of the withdrawal and the impression which the

Subordinate Judge himself had formed of the effect of the withdrawal on the interests of the minor, Bhashyam Aiyangar J. held that it was the

obvious duty of the Subordinate Judge to have adjourned the suit in order to enable some one interested in the minor to apply on his behalf for the

removal of the next friend and for the appointment of a new next friend, or as the learned Judge adds, in order that the minor plaintiff himself may,

on coming of age, elect to proceed with the suit or withdraw from it. It may be pointed out in passing that this last addition has no support in

Section 446 of the Code of 1882 though it cannot be said that a Court may not, in a proper case, and especially if the attainment of majority by the

plaintiff is imminent, adjourn the suit till he came of age. In our opinion, this decision only points out what the Court should do when there is

adequate material before it to hold that the interests of a minor plaintiff are being sacrificed and that it is not bound to permit the unconditional with

drawal of the suit when it is satisfied that it is destructive of the minor plaintiff''s interests. We regard the decision, as no more than the application

of Section 446 or Order 32, Rule 9 to the particular stage at which the withdrawal occurred in that case.

In Kathaswami Chettiar v. Ramachandran AIR 1934 Mad. 428 Curgenven J. held that the default of a guardian ad litem of a minor defendant

in wrongfully allowing the claim to be decreed ex parte will constitute a sufficient reason for the non-appearance of the minor within the terms of

Order 9, Rule 13, Civil P.C. The learned Judge regards the case as in many respects analogous to that of an advocate who has failed to put in an

appearance after undertaking to represent a party and adds that he has 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. We must point out that the correctness of this last proposition is not beyond

doubt as it cannot be held that the non-appearance of an advocate would ipso facto enable the party to avail himself of the benefit of Order 9, Rule

9 or Order 9, Rule 13. After stating this analogy, the learned Judge goes on to point out that 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."" Then after a long quotation from Kesho

Pershad v. Hirday Narain 6 C.L.R. 69 and a reference to an observation of Seshagiti Aiyar J. in Neelaveni v. Narayana Reddi AIR 1920 Mad.

640 Curgenven J. concludes that

the finding of the District Munsif that defendant 1 had betrayed his trust as guardian is sufficient to bring the case within the terms of Order 9, Rule

13, Civil P.C.

Dealing with a case of a minor plaintiff, Beasley C.J. held in Venkataratnam v. Nagappa AIR 1934 Mad. 616 that if the next friend is absent,

through whatever cause it may be, at the trial, that fact alone is a sufficient reason for setting aside an order of dismissal of the suit, quoting in

support of his decision Kesho Pershad v. Hirday Narain 6 C.L.R. 69; Kathasami Chettiar v. Ramchandran AIR 1934 Mad. 428 and Neelaveni v.

Narayanca Reddi AIR 1920 Mad. 640 meaning by this last citation to refer only to the observation of Seshagiri Aiyar J. already adverted to. The

learned Chief Justice deals with several possible alternatives which might have been responsible for the non-appearance of the next friend: (1) her

illness in which case undoubtedly the dismissal has to be set aside; (2) her negligence on which supposition also he held that the suit should be

restored and (3) the assumption that the mother was deliberately acting hostilely and adversely to the interests of the minors. This last the learned

Chief Justice describes as a fortiori case and says that the minors'' rights cannot be allowed to be prejudiced by the action so adverse. And finally

he sums up the result in the manner stated above. There is no doubt that this decision goes a long way to support the argument of the appellants''

counsel. In Subbarayadu v. Bappanna Rao AIR 1935 Mad. 565 however, sitting with Cornish J., Beasley C.J. himself had occasion to examine

and explain the precise effect of his decision in Venkataratnam v. Nagappa AIR 1934 Mad. 616. The case in Subbarayudu v. Bapanna Rao AIR

935 Mad. 565 was also a case of a minor plaintiff, but we may incidentally observe that in this case as also in Venkataratnam v. Nagappa AIR

1934 Mad. 616 the law was stated as equally, applicable to a minor plaintiff and a minor defendant and that even in Kathasami Chettiar v.

Ramachandran AIR 1934 Mad. 428 no distinction seems to have been. Intended between a plaintiff''s case and a defendant''s case though it was

itself a case of a minor defendant. In Subbarayudu v. Bapanna Rao AIR 1935 Mad. 565 Beasley C.J. who delivered the judgment of the Court,

pointed out that Kesho Pershad v. Hirday Narain 6 C.L.R. 69; Kathasami Chettiar v. Ramchandran AIR 1934 Mad. 428 and Venkataratnam v.

Nagappa AIR 1934 Mad. 616 were ""cases in which there were bona fides"" and that ""they cannot be taken to apply to cases where, as a

manoeuvre or in pursuance of tactics agreed upon between the plaintiff and the defendant or between the defendants themselves, the next friend or

guardian ad litem deliberately absents himself or herself in order to gain some advantage in the litigation. Cases like those are not cases of bona fide

negligence. They are cases where for ulterior and improper motive and as part of a deliberate plan this manoeuvre is resorted to."" The learned

Chief Justice then adds that he wished it to be clearly understood that the three cases to which reference has been made are cases which deal with

bona fide conditions and none other. He then refers to the contention based on VenKcataratnam v. Nagappa AIR 1934 Mad. 616 to the effect

that whatever happens, whenever there is an absence of a next friend or guardian ad litem the minor is entitled to have the case restored to the list

or the ex parte decree set aside. This, says the Chief Justice, would of course lead to manifest injustice. While conceding that a decree is rightly set

aside where the absence of the guardian is bona fide, he adds that the guardian cannot be permitted to go on absenting himself time after time.

Pointing out the difficulty that would arise in such a case the learned Chief Justice concludes with the following observations which may usefully be

quoted:

If such a thing as that were to be allowed, it would mean that an ex parte decree could never be passed against a minor during the minor''s

minority. Every time the guardian was absent the minor would be able to say that he was not represented by his guardian and his guardian was

absent through neglect, illness or otherwise. There must be some limitation to the rule stated in those cases and the limitation must be that where it

is shown that the guardian absents himself or herself deliberately in pursuance of a plan in order to obstruct a litigation, or the absence is not bona

fide the minor cannot claim the benefit of these decisions.

The decision in Subbarayudu v. Bapanna Rao AIR 1935 Mad. 565 was followed in Ramanathan v. Meyyappa Chettiar AIR 1936 Mad. 961 in

which it was held that the mere absence of a guardian ad litem is not by itself a sufficient cause for allowing an application under Order 9, Rule 13,

Civil P.C. and that it must further appear that the guardian has betrayed the interests of the minor in allowing the decree to be passed ex parte. The

learned Judges state that one of the devises or stratagems commonly practised to delay proceedings is to allow a decree to be passed ex parte and

then apply to have it set aside and prefer an appeal from the order refusing to set it aside. It would be noticed that Curgenven J. used the same

language in Kathasami Chettiar v. Ramachandran AIR 1934 Mad. 428, viz., that the ""guardian betrayed his trust"" though it is quite clear that be

reached a conclusion which is directly opposed to the conclusion arrived at in Ramanathan v. Meyappa Chettiar AIR 1936 Mad. 961. There is no

doubt that the law is thus left in some uncertainty.

If the non-appearance of the next friend I is bona fide or in other words for reasons which would be held to constitute sufficient cause if he

were conducting his own suit there is no controversy that Order 9, Rule 9 can be invoked on behalf of the minor plaintiff.

If the non-appearance of the next friend: is the result of collusion between him and the defendant or if the next friend assumes, for whatever

reason, an attitude of hostility against the minor plaintiff and consequently refrains from appearing there may be ""sufficient cause"" for the restoration

of the suit. It is unnecessary to say anything further on this matter as in this case, there is no suggestion of any collusion between the plaintiffs'' next

friend and the defendant or that the next friend was hostile to the interests of the minor plaintiffs. Cases of such collusion and hostility would

perhaps be regarded in the language of Ramanathan v. Meyyappa Chettiar AIR 1936 Mad. 961 as cases where the guardian has betrayed the

interests of the minor or in the language of Kathasami Chettiar v. Ramachandran AIR 1934 Mad. 428, as cases where ""he betrayed his trust.

Where a next friend is negligent or deliberately obstructive and the suit is dismissed for his non-appearance there is, in our opinion, no sufficient

cause for such non-appearance within the meaning of Order 9, Rule 9 and therefore no ground for restoration.

The peculiarly difficult position of a minor, who cannot appear by himself and who has not only no hand in the selection of his representative

but is incapable in law of choosing him, has, no doubt, led the Courts in Kesheo Pershad v. Hirday Narain 6 C.L.R. 69; Kathasami Chettiar v.

Ramachandran AIR 1934 Mad. 428 and VenTcataratnam v. Nagappa AIR 1934 Mad. 616, to stretch a point and construe the words ""sufficient

cause"" so as to include also cases of negligence or obstruction on the part of the next friend or guardian ad litem. In our opinion there is not only no

justification for such an extension but there are also serious practical difficulties in the way of accepting an interpretation which would render the

expression ""sufficient cause"" entirely meaningless as every non-appearance of a next friend or guardian ad litem would, in that view, attract the

operation of Order 9, Rule 9 or Order 9. Rule 13.

A question of practical importance may no doubt arise as to how best the interests of a minor plaintiff can be safeguarded when there is

negligence or obstruction on the part of his next friend. Apart from dealing with a minor''s suit with more leniency in the matter of adjournments

which may be necessary for preparing for or in the course of the trial, the Court can, where it finds the next mend a conduct of the suit such as is

likely to jeopardise the minor''s interests, remove the next friend and appoint another where that is feasible; but where it is not and the Court is

unable to proceed with the suit because the next friend is persistently negligent or wilfully obstructive, it should, while dismissing the suit and

mulcting the next friend in costs place on record its impressions as to the circumstances preceding the dismissal so that in a future suit by the minor

through another next friend or after attaining majority the Court which tries it may know whether and how far the previous dismissal should stand in

the way of the plaintiff getting his rights adjudicated upon.

According to the argument of the appellants'' counsel the conduct of the plaintiffs'' next friend amounts at the worst to negligence, but this, in

our opinion, is not sufficient cause within the meaning of Order 9, Rule 9.

The appeal therefore fails and is dismissed with costs.