PAKALAPATI AUDISESHU VENKATRAMAYYA Vs. PAKALAPATI PRAKASA RAO BEING INSOLVENT
LAWS(APH)-1955-2-17
HIGH COURT OF ANDHRA PRADESH
Decided on February 02,1955

PAKALAPATI AUDISESHU VENKATRAMAYYA Appellant
VERSUS
PAKALAPATI PRAKASA RAO, BEING INSOLVENT BY OFFICIAL RECEIVER, KRISHNA Respondents


Referred Judgements :-

KESHO PERSHAD V. HIRDAY NARAIN [REFERRED TO]
NEELAVENI V. NARAYANA REDDI [REFERRED TO]
KATHASWAMI CHETTIAR V. RAMACHANDRAN [REFERRED TO]
SUBBARAYUDU V. BAPANNA RAO [REFERRED TO]
SATYAM V. KRISHNAMURTY [REFERRED TO]
RAMANATHAN V. MEYYAPPA CHETTIAR [REFERRED TO]
VAITHILINGA NAIDU V. DEVANAI AMMAL [REFERRED TO]



Cited Judgements :-

H.N. BHARADWAJ VS. GANPAT RAI SERAUGI AND ORS. [LAWS(GAU)-1971-1-7] [REFERRED TO]
PATHIPAKA GOVARDHAN VS. PATHIPAKA ANANDAM [LAWS(APH)-1998-11-70] [REFERRED TO]
HARISHANKAR ARORA VS. VEDBATI [LAWS(MPH)-2010-9-79] [REFERRED TO]


JUDGEMENT

Bhimasankaram, J. - (1.)This is an appeal by plaintiffs 7 and 8 in O.S. No. 42 of 1943 on the file of the Subordinate Judge's Court, Vijavawada, against an order refusing to set aside a prior order of dismissal of the suit so far as they are concerned. The appellants were added as supplemental plaintiffs in their capacity as the legal representatives of the original 6th plaintiff who died sometime after the suit was filed. They are the minor son and wife respectively cf the deceased. The suit was dismissed on 9th December, 194.7, for default of appearance of the plaintiffs. The present appellants alone filed I.A. 292 of 1948 for restoration of the suit so far as they are concerned. It was alleged in the affidavit filed in support of the petition that the suit was being conducted on their behalf by plaintiffs 2 to 5, who are the paternal uncles of the 7th plaintiff, and instead of doing so, they acted in collusion with the other side and did not attend to their suit. It was further alleged that the 8th plaintiff sent her mother to appear before the Court on her behalf, but the latter could not attend in time as she failed to obtain accommodation in a bus which would have taken her there. Oral evidence also was tendered on behalf of appellants. P.W. 1, the mother of the 8th plaintiff deposed that one Rama Rao, her son-in-law's brother, was conducting the litigation on behalf of the plaintiffs, that he was expected to do so even on the 9th December, 1947, that he failed to do so because of collusion with the defendants, that she herself wanted to appear for her daughter, but was unable to be present in Court as she had missed the bus, and that she could reach the Court only after the dismissal of the suit. The learned Subordinate Judge refused to believe P.W. 1. He was of the opinion that the petitioners deliberately stayed away from Court, and that the suit was deliberately allowed to be dismissed for default. He found that there was no satisfactory proof of sufficient cause for non-appearance and dismissed the petition. The present appeal is against that order.
(2.)It is to be noted that one of the appellants is a minor. When a question arises as to whether a minor has been prevented by sufficient cause from appearing in a suit, it has to be determined with reference to the conduct of the next friend of the minor. Now the non-appearance of a guardian (which term will hereafter include a next friend in the following discussion) may be due to accident, design or negligence. Where it is the result of. accident the absence of the guardian will, of course, be treated as sufficient cause for the non-appearance of the minor. The guardian and the minor are treated as one, and the dismissal for default or the ex parte decree will in consequence be set aside. The non-appearance may on the other hand be deliberate and designed. Such wilful absence may be due either So the guardian acting in collusion with the opposite party and against the interests of his ward or to his acting in the interests of the minor and or in the interests of other parties to the litigation. If the Court is satisfied that the next friend had betrayed his trust, it will of course set aside the decree or dismissal, appoint a fresh guardian and proceed with the suit. If, on the other hand, it is clear that the absence was inspired purely by dilatory tactics designed in the supposed interests of the minor, the Court will let the order or the decree stand. There may be instances where though the minor himsef has a good prima facie case, he is being used as a tool to help others to protract the proceedings; then it may be, the Court will protect the interests of the minor by appropriate orders, while at the same time taking suitable measures to prevent the adoption of such a mischievous stratagem. Instances are also conceivable where the guardian absents himself from Court, because he believes bona fide that the minor has no case at all. Here again, the ex parte decree or the dismissal for default will stand. The third reason for the absence of the guardian may be his indifference or recklessness. In our opinion, where the Court is satisfied that a guardian has in not making his appearance neglected his duty to his ward as well as to the Court, it is incumbent upon the Court to protect the interests of the minor from the consequences of such negligence. The suit must be restored or the ex parte decree set aside, and a fresh guardian or next friend appointed. If the relations and friends of the minor do not put the next friend in possession of sufficient funds, (as they may not be inclined to do if it is to their interests that the litigation should be prolonged and if the opposite party is not willing to advance the necessary funds- as in some cases it might do out of a desire to terminate the litigation)-then of course, the Court may be in a difficult position. But in passing a fresh order for dismissal, it may put on record the circumstances in which it was constrained to take such a step. In any suit that may be filed by the minor after he attains majority disputing the binding nature of the prior proceedings on him, the remarks of the Court so recorded may help the Court deciding the subsequent suit in the determination of the question as to the guardian's negligence in the prior litigation.
(3.)It seems to us that the above propositions emerge from the cases cited at the bar. The earliest case to which reference may be usefully made is that in Kesho Pershad v. Hirday Narain, (1880) 6C.L.R. 69. In that case the 1st defendant, the mother, appearing personally and as guardian of her minor sons allowed an ex parte decree to be passed. An application was made on behalf of the minors to set aside the ex parte decree on the ground that summons was not duly served. But this ground was not established.
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