Decided on July 08,1983



N.H.BHATT - (1.) This is an application by Champak Vashram with the prayer that he be allowed to proceed with appeal and that the title of the appeal be allowed to be amended so as to read him hence forth as a person appealing on his own right he having attained the majority on 27-12-1975. In order to understand a big storm in a small tea cup raised in this Civil Application the basic facts of this litigation are required to be closely noted with a sense of anguish in our minds that poor litigants are not properly advised or guided at proper stages in the lower courts and it is because of lack of such diligence and vigilance on the part of the persons advising them this sort of unhappy situation develops to the detriment of the litigants. The facts which we narrate below will amply bear out this.
(2.) There was filed a civil suit in the court of the Civil Judge (S.D.) Rajkot being the special civil suit No. 37 of 1971. The suit had come to be filed in the year 1971 in the name of the present applicant who was then minor and therefore by his next friend and mother Bai Santok Vashram. The suit was filed for partition of the lands in which said Champak claimed to have his share by reason of his being a member of the joint Hindu family. There was one Chhana Kala a resident of Rajkot owning these disputed properties. Said Chhana had two sons namely Vashram and Pola. Vashram died as back as in the year 1944 leaving behind him his widow Bai Santok and two daughters Bai Rambha and Bai Kunvar. Said Bai Kunvar and Bai Rambha were impleaded as the defendants Nos. 3 and 4 in the suit and they are the respondents Nos. 4 and 5 in the present first appeal. One another son of Chhana also was there named Narshi but he had died in the year 1926 leaving no issues or widow and so for our purposes he is to be left out of consideration. Said Pola the brother of deceased Vashram also had died on 3-4-1957 leaving behind him his widow Ratanbai the respondent No. 2 before us a son Dharamsi the defendant No. 1 in the suit and the respondent No. 1 before us and a daughter Bai Mani the defendant No. 2 in the suit and the respondent No. 3 before us and she having expired during the pendency of this appeal her heirs the respondents Nos. 3/1 to 3/5 were brought on the record. Bai Santok had started some litigation for getting her share in the property left by her husband as a Member of the joint Hindu family. The only right that was recognised in that litigation was her right of maintenance. Now on 7-4-1970 Bai Santok adopted minor Champak the son of her daughter Rambha as her son and the legal effect of it is that Champak is considered as the son of Vashram and therefore entitled to the properties left by Vashram in his capacity as a member of the joint Hindu family of which there were two branches one branch of Vashram and the other branch of Pola. After having adopted a son the above mentioned suit No. 37 of 1971 came to be filed on his behalf by his adoptive mother Bai Santok and that said suit had come to be hotly contested. The suit went on upto the later half of the Bar 1975. During the pendency of that suit the contesting defendants had given an application ex. 154 dated 23-7-15 alleging that minor Champak had already attained majority and so Bai Santok had no right to prosecute the suit on his behalf. A reply to that application was also filed by Bai Santok acting as the next friend of her adoptive 60 It was at that stage cleared that minor Champak was to attain majority on 27-12-75. Realising this factual aspect the said application ex. 154 was not pressed by the defendants. By that time the recording of evidence had been concluded and only thing that remained to be done was the hearing of arguments and then pronouncement of the judgment. By the time the judgment came to be pronounced this Champak had already attained majority but no attempt was made to bring him on the record as such by recourse to Order 32 Rule 12 of the C.P.C. and the learned trial Judge by his judgment dismissed the suit. Now the present appeal No. 650 of 1978 came to be presented but the curious aspect of it is this that it came to be presented by Bai Santok as the next friend of Champak who it is conceded before us had already attained majority on the day the judgment had come to be pronounced by the learned trial Judge and therefore obviously on the day the appeal had come to be presented. Along with the presentation of the memo of appeal an application was also filed for allowing the appeal to be filed and prosecuted as an indigent person and that application also was hotly contested but ultimately it was allowed by this court and that order has become final. Then the present application No. 356 of 1978 had come to be presented on 2-2-1978. This application had come to be granted by the Division Bench of this court on 22-2-78 and thereafter the prayer for allowing prosecution of the appeal as an indigent person was granted despite serious objections raised on behalf of the present respondents Nos. 1 to 3 on the ground that the appeal itself was not competently presented and filed. The learned Judges of this court who decided the civil application No. 683 of 1983 (DHARAMSHI POTABHAI V. CHAMPAKLAL VASHRAM 24(2) G.L.R. 1280) left the question of maintainability of this present appeal open. The words are: So far as the question of maintainability of the present appeal is concerned it raises in its turn further question whether the minor plaintiff who had become major could legally file the appeal through his erstwhile guardian ad-litem and whether correction of the memo of appeal as per the order of this court on 22 in civil application No 356 of 1978 had any effect on the filing of the present appeal within the prescribed period of limitation. On these questions we do not express any opinion for the present and the said questions are kept open as they can be more effectively dealt with at the time of final hearing of the main appeal. 3 When the appeal was taken up by us for final hearing the question of maintainability of the appeal was taken up and when earlier order passed by the Division Bench of this court on this application No. 356 of 1978 is there to put an answer to the contention the learned counsel Mr. Mehta appearing for Mr. Kothari submitted that this order having been passed ex-parte behind their back would not bind them and this decision could not be flung in their face to shut them out from raising the contention about the maintainability of the appeal. The perusal of the record showed that this order allowing C. A. 356 of 1978 had come to be passed ex-parte. No rule was issued on that civil application. No arguments appear to have been advanced and the matter has been decided as if no lis existed between the parties. It therefore occurred to us that the order having been passed ex-parte and behind the back of the respondents as they contended that order passed on this civil application on 22-2-78 should be treated as nonest and we had therefore ordered that the said application No. 356 of 1978 should be heard by us afresh ant decide along with it the question of maintainability of the appeal also because rehearing of this application has arisen on the preliminary objection to the maintainability of the appeal. 4 The above narration would at once show that though at the stage of the trial it was specifically made known to this plaintiffs guardian that her authority to act for the minor was limited to the period up to 27-12-75 nothing appears to have been done and the things were taken complacently by her and also by her advocate in the trial court. With the passage of time this lady who appears to be aged and also illiterate as we can see from the thumb impressions on the various documents put on the record of this case lost sight of this legal aspect and presented the appeal and in the title of the memo of appeal it is mentioned as follows :- Champaklal vashram being minor by his next friend and mother Add. Bhanu Kalavadi Sheri Bedipara Rajkot. This appeal was presented in this court on 9-9-76 and along with it were presented two applications one for permitting the appeal to be prosecuted in forma pauperism and the other for condonation of delay of nine days the delay occurring because the appeal filed by an indigent person is required to be filed within 60 days whereas the appeal to be filed by a non-indigent person can be filed within 90 days. In this case ultimately the court fees have been paid and therefore the question of limitation loses all importance. So the question of the appeal being barred by limitation would not arise.
(3.) Initially the permission to prosecute the appeal in forma pauperis was granted and so was granted the application for condonation of delay but subsequently the respondents Nos. 1 to 3 pointed out to the court that as the said order of leave to prosecute the appeal in forma pauperis was obtained by fraud the court fees have been paid. Though the learned advocates for the respondents Nos. 1 to 3 agitated before us that the question of limitation still would survive in our view once the Court fees are paid and they are treated as paid on the memo of appeal as presented an the day the memo was presented the question of limitation would not arise.;

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