S.B.MAJMUDAR - (1.)The petitioner who is original respondent No. 1 in the main first appeal and who was original defendant No. 1 in special civil suit No. 37 of 1971 in the court of the learned Civil Judge (Senior Division) Rajkot has requested this court by way of the present application to decide as a preliminary point the question regarding the maintainability of the first appeal. Earlier a Division Bench of this court had directed on 28-2-1982 that this application be heard along with the main appeal. But subsequently a later Division Bench of this court directed that this application be taken up for consideration earlier and the learned advocates of both the sides are agreed to this position and that is how this application reached final hearing before us yesterday.
(2.)In order to appreciate the grievance of the petitioner centering round the maintainability of the first appeal it will be necessary to quickly glance through a few relevant facts leading to the present litigation between the parties. Opponent No. 1 is the original plaintiff on whose behalf special civil suit No. 37 of 1971 was filed in the court of the learned Civil Judge (Senior Division) at Rajkot by his guardian and next friend his adoptive mother Bai Santok as admittedly opponent No. 1 was a minor at the time when the suit was filed. The said suit was filed against the present petitioner who was defendant No.1 as well as against opponent No.2 who is since deceased against Opponent No.3 who is since deceased and who is represented by her heirs opponents Nos. 3/1 to 3/4 opponent No. 4 as well as opponent No.5 who were defendants Nos. 3 to 5 respectively. Opponent No.1 had filed the suit through his guardian and adoptive mother for getting partition of property of joint Hindu family allegedly consisting of himself and defendant No.1 and others and to get his one half share separated and to get accounts of the property and his share of the income and mesne profits on the various allegations contained in the plaint. At this stage we are not concerned with the merits of the controversy. Hence we do not dilate on the same any further. The aforesaid suit was filed on 25-6-1970 in forma pauperis. An application for permission to sue in forma pauperis was moved being civil miscellaneous application No. 269 of 1970 before the trial court which ultimately came to be allowed on 26-4-1971 and opponent No. 1s mother Bai Santok as guardian and next friend of minor plaintiff was permitted to file the suit in forma pauperis and the suit was registered as special civil suit No. 37 of 1971 on 26-4-1971. It appears that during the pendency of the suit opponent No. 1 married on 21-5-1975. That prompted the present petitioner defendant No. 1 as well as original defendants Nos. 2 and 3 to file application ex. 154 on 23-7-1975 requesting the trial court to issue notice under Order 32 Rule 12 C. P. Code to opponent No. 1 who according to the petitioner and other contesting defendants had become major as he had married during the pendency of the suit. The said application was replied to by ex. 155 on 14-8-1975 by opponent No. 1s guardian and next friend Bai Santok. She stated that the plaintiff was still a minor and hence the application filed by the petitioner and other defendants was not maintainable. In view of the aforesaid stand taken by opponent No.1s guardian and next friend the petitioners learned Advocate in the trial court Mr. D. L. Kothari made an endorsement below ex. 154 that the said application was not pressed. The said endorsement was made on 3 It appears that thereafter the learned trial Judge decided the suit on merits on 26-4-1976 and dismissed the suit of opponent No. 1 with cost and also directed opponent No.1s guardian and next friend Bai Santok to pay courtfees which would have been paid if the plaintiff was not permitted to sue as a pauper according to Order 32 Rule 11 C. P. Code.
(3.)Being aggrieved by the aforesaid decree of dismissal of the suit an appeal was filed before this court under sec. 96 of the C.P. Code on 9-9-1976. The said appeal was sought to be filed as a pauper under Order 44 Rule 1.C.P. Code praying therein that opponent No. 1s guardian and next friend might be permitted to file this appeal in pauperism. The said miscellaneous civil application came to be registered as miscellaneous civil application No. 64 of 1976 in this court. As the said application was filed beyond 30 days of the date of the decree of the trial court opponent No. 1s guardian and next friend filed civil application No. 2191 of 1976 before this court praying for condonation of delay of 9 days in filing the appeal in paupersim. Notice was issued in the said application for condonation on delay the other side and that is how the present petitioner appeared before this court through his learned Advocate and contested the said application. He filed his objections on 10-2-1977. In the meantime respondent No. 3-Bai Mani who was original defendant No. 3 in the trial court expired and her heirs were permitted to be brought on record by civil application No. 1896 of 1978 filed by opponent No. 1s guardian and next friend in delay condonation application No. 2191 of 1976. The said application No. 189/6 of 1978 was granted by this court on 7-9-1978. The heirs of original defendant No. 3 Bai Mani who were brought on the record of the proceedings in this court also filed their objections to the delay condonation application after they were joined as parties to the present proceedings in this court. Thereafter this court after hearing the concerned parties condoned the delay in filing the first appeal on behalf of opponent No. 1 who was still at that time prosecuting the proceeding in this court as a minor through his guardian and next friend Bai Santok. The delay condonation application No. 2191 of 1976 came to be granted on 1-2-1978. It is thereafter that opponent No. 1 filed another civil application No. 356 of 1978 in the first appeal which was at that time bearing stamp No. 12233 of 1976. The said application was filed under the provisions of Order 32 Rule 12 by opponent No. 1 on 27-1-1978. At that time opponent No. 1 submitted to this court that he had already become major on 27-12-1975 and hence the title in the appeal may be allowed to be amended and that opponent No. 1 may be permitted to prosecute the appeal as a major appellant. A Division Bench of this court granted the said application on 22-2-1978. It appears that at the stage when the said application for correcting the record was made and at the time when it came to be granted the opponents were not ordered to be served with the notice of the said civil application and the order passed by the Division Bench of this court on 22-2-1978 in civil application No. 356 of 1978 appears to be an ex-parte order. However the said circumstance does not have any pernicious effect on the present respondents in the appeal including the present petitioner for the simple reason that it is the petitioners own case accepting the stand taken by opponent No. 1 in the civil application No. 356 of 1978 that opponent No. 1 has become major on 27-12-1975 and it is on this basis that the present application is moved by the petitioner for getting reliefs as prayed for therein. Therefore it has to be taken as an accepted fact between the parties that opponent No. 1 became major on 27-12-1975 and that he requested this court to permit him to prosecute this appeal as a major by his application No. 356 of 1978 and that the court granted him permission to prosecute the appeal as a major appellant on 22-2-1978 and the record of the appeal stood corrected accordingly.