KOCHUNARAYANI AMMA NALINI ALIAS RADHA Vs. VELU MENON GOVINDA MENON
LAWS(KER)-1955-1-23
HIGH COURT OF KERALA
Decided on January 06,1955

KOCHUNARAYANI AMMA NALINI (ALIAS RADHA) Appellant
VERSUS
VELU MENON GOVINDA MENON Respondents

JUDGEMENT

Joseph Vithayathil, J. - (1.) DEFENDANTS 6 and 7 are the appellants in this Civil Miscellaneous Appeal. The appeal is from an order refusing to set aside the ex parte decree passed against the appellant. The suit is for partition. DEFENDANTS 6 and 7 were minors when the suit was instituted and their mother the second defendant, was appointed their guardian for the suit. She did not contest the suit either on her own behalf or on behalf of the minor defendants. DEFENDANTS 29, 31 and 42 contested the suit. A preliminary decree for partition was passed in the case on 26.6.1952. DEFENDANTS 6 and 7 filed a petition on 17.9.1953 to set aside the ex parte decree passed against them. It was alleged in the affidavit filed in support of the petition that the petitioners came to know of the decree only on 12.9.1953 and that there was gross negligence on the part of their guardian in not contesting the suit on their behalf. The court below rejected the petition on the ground that it was not maintainable and also on the ground that there was no negligence on the part of the guardian in not contesting the suit. The appeal is from that order.
(2.) THE questions that arise for consideration in the appeal are: (1) Whether the petition to set aside the ex parte decree is maintainable and (2) whether there has been negligence on the part of the guardian ad litem in not contesting the suit on behalf of the minor defendants. The Court below held on the basis of the decision of a Single Judge of this Court in Bhavani Amma v. Govinda Pillai (1954 K.L.T. 10) that negligence on the part of the guardian ad litem in not defending the suit on behalf of the minor defendant is not a "sufficient cause" within the meaning of O.9 R. 13, Code of Civil Procedure, for setting aside the ex parte decree passed against the minor. We do not think that decision can be taken as an authority for the position that a minor defendant is not entitled to apply under O.9 R.13, C.P.C. to set aside the ex parte decree passed against him in a case in which there has been gross negligence on the part of the guardian ad litem in not contesting the suit on his behalf. That was a case in which a minor plaintiff's next friend instituted the suit on behalf of the minor. The suit was ultimately dismissed. The plaintiff filed a petition for restoration of the suit alleging that the next friend was guilty of gross negligence, fraud and collusion. The trial court held that the next friend was negligent in the conduct of the suit and that the question of limitation did not arise in the case. The petition was accordingly allowed. In revision filed from the order this Court held that there was no sufficient ground for the restoration of the suit or for condoning the delay in making the application for restoration. The plaintiff had attained majority while the suit was pending and he did not choose to have the next-friend removed. It was, therefore, held that the plaintiff also was negligent in the conduct of the case. It was also observed on the authority of the decision of the Madras High Court in Vythilinga Naidu v. Devanayi Ammal and another (A.I.R. 1949 Mad. 46) that the words 'sufficient cause' in O.9 and R.9, or in O.9 R. 13. Code of Civil Procedure could not be construed so as to include cases of negligence of the part of the next-friend of a minor plaintiff, or guardian for the suit of a minor defendant, in the conduct of the suit. Both the Travancore High Court and the Cochin High Court have held that one of the remedies open to a minor defendant against whom a decree is passed ex parte as a result of the gross negligence on the part of the guardian ad litem in the conduct of the suit is to apply under O.9 R.13, C.P.C. for setting aside the ex parte decree. The question was considered by the Travancore High Court in Parameswaran Pillai v. Lekshmi Amma (25 T.L.J. 171). Venkita Rao, J., who wrote the leading judgment in the case, discussed the question with reference to the rulings of the other Indian High Courts and held that if a minor defendant had a valid defence in the suit and the guardian ad litem did not put forward such defence he can apply under O.9 R. 13, C.P.C. for setting aside the ex parte decree. Reference was made to the rulings of the Madras High Court in Kantha Swamy Chettiar v. Ramachandran (1934 Mad. 248) and Venkitaratnam v. Nagappa (1934 Mad. 616). In the former case Curgenven, J., followed the decision of the Calcutta High Court in Kasha Pershad v. Hirdai Narain (6 Cal. L.R. 69). Reference was also made to the dictum of Sheshagiri Iyer, J., in Neelaveni v. Narayana Reddi (43 Mad. 94 F.B.) to the effect that negligence on the part of the guardian ad litem in defending the suit on behalf of a minor defendant would be a 'sufficient cause' within the meaning of O.9 R.13, C.P.C. The other cases relied on are Vinodini Debi v. Parameswar Dayal (1925 Pat. 512) and Motichand v. Balram Das (55 All. 136). In the latter case Sulaiman, C.J., held that a minor defendant against whom an ex parte decree has been passed owing to the default or negligence of his guardian ad litem may apply for setting aside the ex parte decree under O.9 R.13, and is not confined to the remedy of bringing a fresh suit.
(3.) THE same view was taken by the Cochin High Court in Gopala Menon v. Sarada (36 Cochin 417). Koshi, J., (as he then was) who wrote the leading judgment in the case held that if a decree happens to be passed ex parte against a minor defendant on account of the negligence of the guardian ad litem the minor is entitled to apply under O.9 R.13, Civil Procedure Code, to have the ex parte decree set aside. We find no reason to disagree with the view taken by the Travancore High Court, in Parameswaran Pillai v. Lekshmi Amma (25 T.L.J. 171) and by the Cochin High Court in Gopala Menon v. Sarada (36 Cochin 417). If the decision in 1954 K.L.T. 10 is interpreted as laying down a different rule of law, we regret we are unable to follow it. A.I.R. 1949 Mad. 46 which is relied on in 1954 K.L.T. 10 was distinguished in a later decision of the Madras High Court, i.e., Sivanarayana v. Nagasubbamma (1952 Mad. 600). Panchapakesa Iyer, J., observed in that case that he could not agree with the view that a guardian's negligence to appear and defend a suit on behalf of the minor defendant is not a sufficient cause within the meaning of O.9 R. 13. We are, therefore, unable to agree with the view taken by the court below that the petition filed by defendants 6 and 7 under O.9 R. 13, Code of Civil Procedure is not maintainable.;


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