IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 3[SECTION][SECTION] of 199[SECTION](D) 1. MADAVI Petitioner Vs 1. RAJI Respondent For Petitioner :SRI.K.RAMACHANDRAN For Respondent :SMT.PREETHY KARUNAKARAN The Hon'ble MR. Justice P.BHAVADASAN Dated :2[SECTION]/06/20[SECTION] O R D E R [ENTITY], J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 3[SECTION][SECTION] of 199[SECTION] - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2[SECTION]th day of June, 20[SECTION]. JUDGMENT
Defendants [SECTION], 9, [SECTION] and 12 in O.S. 213 of 19[SECTION][SECTION] before the Munsiff's Court, Ottappalam, who suffered a preliminary decree for partition, which was confirmed in appeal are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court.
2. Fortunately there is no dispute regarding the facts of the case.
3. The suit was laid challenging the decree in O.S. 103 of 19[SECTION]1 before the Sub Court, Ottapalam, which too was a suit for partition between the parties to this suit in which a preliminary decree was passed. The plaintiff's case is that at that time, she was a minor and she was represented by her mother as guardian. The allegation is that the guardian was negligent in the conduct of the case and that had resulted in passing of the ex-parte preliminary decree. Even though a petition was filed for setting aside the ex-parte decree, that was dismissed and C.M.A. filed from the said order was also dismissed. Pointing out that the negligence of the guardian to protect the interest of the plaintiff resulted in an ex-parte decree being passed against her, the present suit was laid for partition as well as for a declaration that the decree in O.S.103 of 19[SECTION]1 of Sub Court, Ottappalam is not valid and binding on the plaintiff.
4. Defendants [SECTION] to 12 resisted the suit by pointing out that the suit itself is not maintainable since it is barred by res judicata by virtue of the decision in O.S. 103 of 19[SECTION]1. It is also contended that though the plaintiff was a minor at the time of institution of the earlier suit, she attained majority during the pendency of the suit. A preliminary decree was passed on [SECTION].2.19[SECTION]3 while the plaintiff in the present suit became a major in 19[SECTION]2. Thereafter the plaintiff along with some of the defendants in the earlier suit had filed an application to set aside the ex-parte decree and that petition was dismissed. They had carried the matter in appeal before this court and that was also dismissed. The contention was that having chosen to accept the decree in the earlier suit by taking further proceedings in the matter, the plaintiff cannot now say that the earlier decree is not valid and binding. Apart from the above fact, it is also contended that the suit is barred by limitation. Contentions regarding the merits of the matter are also taken, which are not very relevant for the present purpose. On the basis of these contentions they prayed for a dismissal of the suit.
5. Issues were raised by the trial court. Evidence consists of the testimony of Exts.A1 to A[SECTION] from the side of the plaintiff and Exts.B1 to B[SECTION] marked from the side of the defendants. Neither side adduced any oral evidence. The trial court on the issue of maintainability found that the guardian was negligent and therefore the decree in O.S.103 of 19[SECTION]1 was not binding and set it aside.
6. Defendants [SECTION] to 12 carried the matter in appeal as [CASE NUMBER] before the Sub Court, Ottappalam. It would appear that the lower appellate court was not very much impressed by the finding of the trial court that the decree in O.S. 103 of 19[SECTION]1 was bad for negligence, but on the other hand held that the plaintiff is entitled to the benefit of [SECTION] of the [ACT] and therefore the suit is maintainable and thereafter went on to hold that the decree in O.S.103 of 19[SECTION]1 is not binding on the plaintiff and confirmed the preliminary decree passed by the trial court. The above judgment and decree are assailed in this Second Appeal.
[SECTION]. Notice is seen issued on the following questions of law:
"a) Were the courts below justified in finding that the suit is not barred by limitation?
b) Did not the courts below err in finding that the suit in a Munsiff Court challenging the decree of the Sub court is maintainable?
c) Were the court below justified in finding that the mother of the plaintiff was grossly negligent and whether such a contention is available to the plaintiff in this suit?
d) Did not the courts below err in not entering findings on many material points in controversy?
e) Did not the courts below err in decreeing O.S.213/[SECTION][SECTION]?"
[SECTION]. Sri. [ENTITY], learned counsel appearing for the appellants, pointed out that both the courts below have misdirected themselves both on facts and in law. Learned counsel went on to point out that the suit to set aside the decree must be deemed to have been one under [SECTION] of the [ACT] and if that be so, it is absolutely necessary that the plaintiff establishes fraud or collusion. Even assuming that the provision may takes in gross negligence on the part of the guardian as one of the grounds to set aside the decree, in the case on hand there is absolutely no pleading or evidence in that regard. Apart from the above fact, learned counsel went on to point out that the plaintiff became a major in 19[SECTION]2 and going by [SECTION] of the [ACT] she gets three years from the date of attaining majority to assail the decree in O.S.103 of 19[SECTION]1, which was passed on [SECTION].2.19[SECTION]3. The suit was filed only on 25.[SECTION].19[SECTION][SECTION]. Learned counsel went on to point out that in fact as against the preliminary ex-parte decree passed in O.S.103 of 19[SECTION]1, the plaintiff in the present suit along with others had filed I.A.450 of 19[SECTION]3 on 4.3.19[SECTION]3 to have the ex-parte decree set aside. The plaintiff was the fifth petitioner in the said petition. At the relevant time, she had already become a major. That petition was dismissed on 5.[SECTION].19[SECTION]3. The plaintiff did not stop there. She along with other persons had preferred C.M.A. before this court against the order in I.A.450 of 19[SECTION]3 on [SECTION].9.19[SECTION]3 which was dismissed on 6.3.19[SECTION][SECTION]. Construing [SECTION], [SECTION] and [SECTION] of the [ACT] and also applying [SECTION] of the [ACT] at any rate the plaintiff had knowledge about the preliminary ex-parte decree on [SECTION].2.19[SECTION]3 and the suit should have been filed atleast three years from that date. Even taking a liberal view, at any rate, it ought to have been filed within three years from 5.[SECTION].19[SECTION]3, on which date I.A.450 of 19[SECTION]3 was dismissed. According to the learned counsel, the claim of the plaintiff in the present suit that she is entitled to exclude the period from 4.3.19[SECTION]3 till 25.[SECTION].19[SECTION][SECTION], the period during which the I.A. and C.M.A. were pending cannot be countenanced. Apart from the above fact, learned counsel also pointed out that [SECTION] of the [ACT] has no application to the facts of the case. Learned counsel also went on to point out that it is significant to notice that the earlier decree, i.e., the preliminary decree in O.S.103 of 19[SECTION]1 was passed by the Sub Court and the present decree setting aside the earlier decree was passed by the Munsiff's Court, which is a subordinate court. According to learned counsel, that is not possible in law. On the basis of these contentions, it is contended that the decree passed by the lower courts are liable to be set aside.
9. Sri. [ENTITY], learned counsel appearing for the contesting respondents on the other hand pointed out that [SECTION] of the [ACT] is applicable to the facts of the case since it can be easily seen that the guardian was grossly negligent in conducting the earlier suit and that has prejudicially affected the rights of the plaintiff, who became major subsequently. It is contended that it is not as if that fraud and collusion alone can be the ground to set aside the decree since [SECTION] is only permissive and not prohibitive. Grounds like gross negligence of the guardian and other such factors have been recognized in law as grounds providing for setting aside the decree apart from fraud and collusion. Learned counsel relied on the decision reported in [PRECEDENT] in support of his case and contended that [SECTION] of the Act confers substantive right and that cannot be defeated by procedural intricacies. He also relied on the decision reported in [ENTITY] v. State of Kerala (2006(3) K.L.T. 9[SECTION]). Pointing out that [SECTION] calls for a liberal interpretation and it should be so construed so as to advance justice, learned counsel relied on the decision reported in J.Kumaradasan Nair v. Iric Sohan 2009) 12 SCC 1[SECTION]5). Learned counsel went on to point out that the plaintiff in the present case is entitled to exclude the period from 4.3.19[SECTION]3 when the I.A. for setting aside the preliminary decree in the earlier suit was filed and till the C.M.A. was finally disposed of on 6.3.19[SECTION][SECTION]. If that period is excluded, as per [SECTION] of the [ACT], the suit would be well within time. Learned counsel asserted that the contention that the Munsiff's Court cannot set aside the decree in a case falling under [SECTION] of the [ACT] is baseless. Any court, whether be inferior or superior, can set aside a decree, which is vitiated by fraud, since fraud vitiates all proceedings.
10. The issue that arises for consideration are
(i) Whether the Munsiff's Court can set aside a decree of the Sub Court, which is a superior court?
(ii) Is the decree in O.S.103 of 19[SECTION]1 vitiated by fraud, collusion or gross negligence?
(iii) Is the suit barred by limitation?
[SECTION]. It was very vehemently contended on behalf of the appellants that the Munsiff's court, where the present suit was filed, could not set aside a decree of the Subordinate court which passed the decree in O.S.103 of 19[SECTION]1, which is admittedly a superior court.
12. According to learned counsel, the hierarchy of the courts and judicial discipline demands that the judgment and decree of the higher court should be respected by the inferior court and there is no reason to accept the proposition that inferior court can set aside the decree of a superior court.
13. Though the argument may look attractive at the first blush, on a close scrutiny it appears to be without substance in view of the various aspects to which reference will be shortly made.
14. One has to remember that the plea is one of fraud and collusion, which according to the plaintiff vitiates the decree passed in O.S.103 of 19[SECTION]1. As rightly pointed out by the learned counsel for the respondents, [SECTION] does not confine itself to fraud and collusion and that provision has been extended to cases of gross negligence on the pat of the guardian resulting in a decree prejudicial to the interest of the minor. If once fraud, collusion or such other vitiating elements are alleged, then, one fails to understand how it could be said that an inferior court could not set aside the decree of a higher court. It is well settled that fraud vitiates all proceedings and benefit obtained under a fraudulent decree cannot be sustained or cannot be upheld. One may refer to the decision reported in Sarthakram Maiti v. Nundo Ram Maiti ([SECTION] CWN 5[SECTION]9) wherein it was held as follows:
"A court of inferior jurisdiction is competent to declare a decree of a superior court to be a nullity on the ground of fraud, if otherwise it has jurisdiction to entertain the suit."
In the decision reported in Ishar Das v. Salig Ram (59 IC
2)it was held as follows:
"A suit to set aside an ex parte decree on the ground fraud may be brought in a court other than that by which the decree sought to be set aside was passed."
[SECTION]. In the decision reported in Arunachellam Chetty v. Sabapathy Chetty (191[SECTION] Vol.XLI IC 93[SECTION]) it was held as follows:
"An inferior court has jurisdiction to set aside the decree of a superior court obtained by fraud, provided it is otherwise competent to try the suit.
It matters not whether the impeached judgment has been pronounced by an inferior Tribunal or by the highest Court of judicature in the realm; in all cases it is competent for every court, whether superior or inferior, to treat as a nullity any judgment which can be clearly shown to have been obtained by manifest fraud."
16. The Apex Court had occasion to consider the issue recently in a decision reported in [ENTITY] 's case (supra) wherein it was held as follows:
"[SECTION] of the [ACT] enables a party otherwise bound by a previous adjudication to show that it was not final or binding because it is vitiated by fraud. It is always competent to any court to vacate any judgment or order, if it be proved that such judgment or order was obtained by manifest fraud. The jurisdiction of the court in trying a suit questioning the earlier decision as being vitiated by fraud, was not limited to an investigation merely as to whether the plaintiff was prevented from placing his case properly at the prior trial by the fraud of the defendant. The court could and must rip up the whole matter for determining whether there had been fraud in the procurement of the decree. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree by the first court or by the highest court has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings."
1[SECTION]. In all the above decisions, the issue was considered at length and held that once it is shown that a decree is fraudulently or collusively obtained or it is vitiated due to any reason, then there is no prohibition on the inferior court to set aside the decree of a superior court. The principle appears to be that fraud vitiates every act and does not depend upon the hierarchy of courts from where a particular decree or judgment is vitiated by fraud is passed. In the light of the above decisions, the first contention has necessarily to fail.
1[SECTION]. The next contention that was very vehemently urged was that [SECTION] of the [ACT] is not at all applicable to the facts of the case. It is contended that [SECTION] applies only in case of fraud and collusion and does not apply in the case on hand, wherein only an allegation of negligence has been made. Learned counsel for the appellants went on to point out that even assuming that gross negligence can be established to have the decree set aside under [SECTION] of the [ACT], there is absolute want of pleadings and evidence in the case on hand to show that there has been gross negligence on the part of the guardian of the plaintiff in the present case in the former suit.
19. It will be first useful to refer to [SECTION] of the [ACT], which reads as follows:
"44. Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved.- Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under [SECTION], [SECTION] or [SECTION] and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion."
20. [SECTION] contemplates two distinct situations. They are (1) when a judgment, order or decree is rendered by a court not competent to deliver it or (2) when the judgment, decree or order was obtained by fraud or collusion. It is by now well settled that once it is shown that a particular judgment, decree or order was obtained by fraud or collusion, then it is not valid and binding and can be ignored. So also in the case of a judgment and decree rendered by an incompetent court. Incompetency refers to inherent want of jurisdiction and not to a wrong decision rendered by a court which had the inherent jurisdiction to decide the matter. Even assuming that a court competent to hear and decide the suit decides it wrongly on a question of limitation or such other matters that does not make the decree a nullity. Though the word fraud has not been defined by the [ACT], the definition contained in [ACT] has been accepted as one applicable to [SECTION] of the Act. It includes all acts, omissions and concealments, which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injuries to another, or by which an undue and unconscientious advantage is taken by another. Two elements are necessary for establishing fraud, (1) deceit and (2) injury or loss to another person. It is usually said that fraud which falls for consideration under [SECTION] must be extrinsic fraud.
21. As already noticed, the principles under [SECTION] has been applied in cases of gross negligence, i.e. gross negligence of a guardian ad litem of a minor on account of which a decree is passed against the minor. It is well recognized that a collateral challenge is also possible and permissible on the ground of fraud or collusion.
22. It will be useful now to refer to the decisions relied on by either side in this regard. In the decision reported in [ENTITY]'s case (supra) it was held as follows:
"[SECTION] of the [ACT] does not stand in the way of showing gross negligence to avoid a judgment. A substantive right cannot be defeated simply because gross negligence is not mentioned as one of the grounds of avoiding a judgment under [SECTION]. The provision of [SECTION] is permissive and not prohibitive. If allows a party to avoid a judgment by proving fraud or collusion, but it does not destroy his substantive right which exists independently of the [ACT]. it does not enumerate or exhaust the grounds upon which a decree or order may be attacked."
23. In the decision reported in Gopalakrishnan v. Rajamma (2006(4) K.L.T. 3[SECTION][SECTION]) it was held as follows:
"In a suit to set aside a decree on the ground of fraud, it is open to the court to consider the question as to whether the claim of the plaintiff in the previous suit was true or false only if the plaintiff is able to show that there ws non-service of summons and the same is attributable to a fraud committed by the other party in the previous suit with the object of keeping the present plaintiff in ignorance of the suit and of preventing him from placing his case before the court. When the Court is asked to set aside a decree on the ground of fraud, the only issue for its decision is whether the decree was procured by fraud. For deciding that issue the court cannot sit in appeal over the impugned judgment or decree. An unsuccessful party also cannot be allowed to get round the rule of res judicata and prove that the judgment was wrong because the court came to a wrong conclusion on the evidence before it. For the purpose of [SECTION] of the [ACT] an ex parte decree stands on the same footing as a decree in a defended suit. Mere non-service of summons does not constitute fraud. The decree will be set aside only if it is proved to have been obtained by fraudulent suppression of summons. In order to get rid of a former judgment it is not sufficient for a person to prove constructive fraud (not deliberate). He must prove actual positive fraud, a meditated or intentional contrivance to keep the parties and the court in ignorance of the real facts of the case and the obtaining of that judgment by such contrivance. A prior judgment cannot be upset on a mere general allegation of fraud or collusion. It must be shown how, when, where an in what way the fraud was committed. A party alleging fraud is bound to establish it by cogent evidence. Mere suspicion cannot be accepted as proof."
24. In the decision reported in Asharfi Lal v. Koili (AIR 1995 SC 1440) the issue as to what constitute negligence which amounts to have the decree set aside under [SECTION] of the [ACT] was considered in detail. In the said decision it was observed as follows:
"In cases where an inference of fraud or collusion can be drawn from the negligence or gross negligence of the next friend it would be permissible for a minor to avoid the judgment or decree passed in the earlier proceeding by invoking [SECTION] without taking resort to a separate suit for setting aside the decree or judgment. If a judgment falls within the ambit of [SECTION] it can be avoided in the proceedings in which it is sought to be relied upon and it is not necessary to have it set aside by instituting independent proceedings in a competent court. In the instant case what was required to be considered was whether the judgment in the earlier declaratory suit fell within the ambit of [SECTION] and for that purpose it was necessary to examine whether an inference of fraud or collusion could be drawn from the gross negligence on the part of the next friend of the minor, in conducting the earlier declaratory suit. If such an inference can be drawn the minor would not be bound by the judgment in the earlier declaratory suit but if such an inference cannot be drawn he would be bound by the said judgment till it is set aside by the competent court in an appropriate proceeding."
25. In the decision reported in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao (AIR 193[SECTION] PC 1) it was held as follows:
"The provisions of [SECTION] of the Code are mandatory and the ordinary litigant, who claims under one of the parties to the former suit, an only avoid its provisions by taking advantage of [SECTION] [ACT], which defines with precision the grounds of such avoidance as fraud or collusion. It is not for the Court to treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from facts. Other factors in Excep.6 to [SECTION] being present, the section lays down a condition that the persons trust be litigating bona fide and the fulfilment of this condition is necessary for the applicability of the section."
25. Though [SECTION] does not refer to gross negligence as such, as noticed in the decisions referred to above, gross negligence has been accepted as a ground falling within the ambit of [SECTION]. But it is not necessary that in all cases of gross negligence an inference of fraud or collusion should follow. If it does not amount to a malafide conduct, it may not be a ground to set aside an earlier decree.
26. It will be only appropriate to refer the pleadings in the case on hand. Paragraph 5 of the plaint deals with the allegation of negligence. The relevant portion reads as follows:
2[SECTION]. It is significant to notice that though an ex-parte preliminary decree was passed in O.S.103 of 19[SECTION]1, the plaintiff herein along with other defendants in the said suit had preferred I.A.450 of 19[SECTION]3 to have the ex-parte preliminary decree set aside. Admittedly at that time the plaintiff in the present case had attained majority. That petition was dismissed on 5.[SECTION].19[SECTION]3. The matter did not stop there. A C.M.A. was filed by the plaintiff herein along with others on [SECTION].9.19[SECTION]3 before this court. That was dismissed on 6.3.19[SECTION][SECTION]. What is significant is that neither in the affidavit in support of the I.A. nor in the memorandum of appeal there is any whisper about the gross negligence of the guardian which vitiates the decree. On the other hand after having attained majority the plaintiff in the present case went on to take further proceedings in the earlier suit and courted decisions against her.
2[SECTION]. In the case on hand there is only a vague assertion of ' (indifference, inattention, disinterestedness, carelessness, negligence). The question that arises for consideration is whether a mere statement that due to the indifference or carelessness on the part of the guardian a decree happened to be passed is sufficient to fall within the ambit of [SECTION] of the [ACT].
29. One may remember here that [SECTION] does not refer to gross negligence at all. But by judicial precedents it is by now well settled that gross negligence which amounts to malafide conduct on the part of the guardian resulting in a prejudicial order against the minor may be a ground to have the decree set aside or to have the decree declared not binding taking aid of [SECTION] of the [ACT]. One cannot omit to notice that details of the negligence as is required to bring the case under fraud and collusion is not at all available in the plaint on hand. Except for a vague statement, no particulars are given to ascertain in what manner the guardian had been negligent. The plaintiff has not chosen to go into the box and speak about the so-called negligence on the part of the guardian which resulted in a prejudicial decree against the plaintiff in the present suit. It is extremely doubtful whether on such a meagre plea without any supporting material, it could be said that the decree is assailable under [SECTION] of the [ACT]. Going by [SECTION] of the Act and principles laid down in the decisions, in the case on hand the plaintiff has miserably failed to show that there has been gross negligence amounting to fraud or collusion on the part of the guardian which resulted in a prejudicial decree being passed in the earlier litigation. Merely because the guardian did not participate in the proceedings or remained ex-parte ipso facto do not provide ground to set aside the decree. It has to be shown that the omission was deliberate, mala fide and with an oblique motive with the object of causing injury to the minor.
30. What now remains to be considered is whether the suit is barred by limitation.
31. Learned counsel for the appellants pointed out that going by the relevant provisions of the [ACT], the plaintiff could have three years from the date of attaining majority to have the decree in the earlier suit set aside. Learned counsel went on to point out that going by [SECTION] of the [ACT] the period begins to run from the date on which the plaintiff had knowledge about the decree. Admittedly the decree in O.S. 103 of 19[SECTION]1 was passed on [SECTION].2.19[SECTION]3. The plaintiff had become a major by then. Even assuming that as on the date of the passing of the decree she was not aware of the same, at any rate when she filed I.A. 450 of 19[SECTION]3 along with other defendants in the earlier suit, it is quite evident that she was aware of the decree. According to learned counsel, [SECTION] cannot be taken aid of for the simple reason that the earlier suit did not fail for want of defect of jurisdiction or other causes of like nature. According to learned counsel, 'other causes of like nature' will have to be construed ejusdem generis. Allegation of negligence is insufficient to bring the case within the ambit of [SECTION] of the [ACT]. Learned counsel relied on the decision reported in Food Corporation of India v. Mohammed Kunhi (2009(3) K.L.T.62[SECTION]), Zafar Khan v. Board of Revenue, U.P. (A.I.R. 19[SECTION]5 SC 39), Deena v. Bharat Singh (A.I.R. 2002 SC 2[SECTION]6[SECTION]), Union of India v. West Coast Paper Mills Ltd. 2000) 3 SCC 45[SECTION]), India Electric Works Ltd. v. James Mantosh (A.I.R. 19[SECTION]1 SC 2313) and Mac-N-Hom Systems v. P.S. Varrier (2003(3) K.L.T. [SECTION][SECTION]9).
32. Learned counsel appearing on behalf of the respondents on the other hand pointed out that based on the decisions already referred to, [SECTION] has to be liberally interpreted and it would take within its ambit any bonafide mistake committed by the parties to an earlier litigation which they had prosecuted in good faith. In the case on hand, according to learned counsel, it is true that the plaintiff in the present case had pursued the matter further after the ex-parte preliminary decree was passed in the earlier suit. But that does not mean that if the decree is vitiated due to fraud, collusion or gross negligence, it cannot be assailed and the plaintiff cannot take aid of [SECTION] of the [ACT]. At any rate, according to learned counsel, the period during which the application for setting aside the ex-parte decree was pending and so also C.M.A. from the order thereon were pending, those periods will have to be excluded.
33. Before going further, it will be only proper to refer to the relevant provision in the [ACT]. The appropriate provision is [SECTION], which reads as follows:
"12. Course to be followed by minor plaintiff or applicant on attaining majority.- (1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.
(2) Where he elects to proceed with the suit or application, he shall apply for an order discharging the next friend and for leave to proceed in his own name.
(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:
"[ENTITY], late a minor, by C.D., his next friend, but now having attained majority."
(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.
(5) Any application under this rule may be made ex parte; but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend."
34. The provision applies in a case where the proceedings are pending before court on behalf of a minor and the minor on attaining majority shall either elect to proceed with the suit or application or not. It may be noticed here that in the earlier case, i.e. O.S. 103 of 19[SECTION]1. where an ex-parte decree was passed against the plaintiff, he was a major and the plaintiff herein opted to proceed with the suit and a petition to set aside the ex-parte preliminary decree as well as a C.M.A. against the order of dismissal of the said application were filed by the plaintiff herein along with others. The issue as to what would happen in case a minor elects or does not elect to come on record as major and proceed with the suit is considered in the decision reported in Hameedu Rawther v. Padmanabhan (1966 K.L.T. [SECTION]06), wherein it was held as follows:
"O.32, R.12 casts a responsibility on the minor who attains majority, to elect on attaining majority, to proceed with the suit or application or not to proceed with it. Evidently if he does not elect and the suit or application proceeds with his guardian or next friend on record, the decision in the suit or application will certain bind them."
35. Having thus opted to continue with the proceedings as contemplated under [SECTION], there cannot be any doubt regarding the fact that the decision in the earlier case is binding on the plaintiff in the present case. Of course, the attack to the earlier decree is that it was vitiated due to gross negligence on the part of the guardian falling within the ambit of [SECTION] of the [ACT], which has already been referred to.
36. Coming back to the question of limitation, it will be first advantageous to refer to the Article which is applicable to the case. Obviously, [SECTION] is the Article which is applicable to the case on hand, which reads as follows:
"50.To cancel or set Three years When the facts entitling aside an instrument the plaintiff to have the or decree or for the instrument or decree rescission of a cancelled or set aside contract. or the contract rescinded first become known to him."
3[SECTION]. The said Article provides a period of three years from the date on which the facts entitling the plaintiff to have the decree set aside first become known to him. Going by the facts in the present case, the ex-parte preliminary decree was passed in O.S.103 of 19[SECTION]1 on [SECTION].2.19[SECTION]3. Admittedly the plaintiff in the present suit has become a major in 19[SECTION]2. At the risk of repetition, one may notice that she along with others had filed I.A.450 of 19[SECTION]3 to have the ex-parte preliminary decree set aside. That was filed on 4.3.19[SECTION]3. Atleast on that date she must be credited with the knowledge of the objectionable ex-parte decree. Going by [SECTION] of the [ACT] time atleast should begins to run from 4.3.19[SECTION]3, if not from [SECTION].2.19[SECTION]3.
3[SECTION]. [SECTION], [SECTION] and [SECTION] of the [ACT] read as follows:
"6. Legal disability.- (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule.
(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified.
(3) Where the disability continues up to the death of that person, his legal representatives may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply.
(5) Where a person under disability dies after the disability ceased but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.
Explanation.- For the purposes of this section, "minor" includes a child in the womb.
[SECTION]. Disability of one of several persons.-
Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.
Explanation I.- This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property.
Explanation II.- For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.
[SECTION]. Special exceptions.- Nothing in [SECTION] or in [SECTION] applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application."
39. [SECTION] is an enabling provision. That provides for an extended period of limitation in cases of persons with disability. It enables a person covered by the provision to have the limitation reckoned against him either from the accrual of the cause of action or from cessation of disability. It must be noticed that the Section does not prescribe the time from which the period beings to run against a person under disability. [SECTION] deals with a case where more than one person is affected by disability and it may not have much relevance to the facts of the case. [SECTION] has some relevance. [SECTION] has been treated as the proviso to [SECTION] and [SECTION]. A combined effect of [SECTION] and [SECTION] read with the third column of the appropriate Article would mean that a person under a disability may sue after cessation of disability within the same period as would otherwise allowed by law or from the time specified in the third column, but the special limitation as an exception has been provided under [SECTION]. [SECTION] provides that the extended period after cessation of disability would not go beyond three years from the date of cessation of disability or as the case may be. Law therefore allows a maximum period of three years from the statutable cause of action or the full period from the ordinary starting point of limitation, whichever is more advantageous to the person concerned.
40. Coming back to the facts of the case, as already noticed, the plaintiff became a major in 19[SECTION]2. She has got three years from the date of becoming a major to assail the decree in O.S.103 of 19[SECTION]1. The ex-parte decree was passed on [SECTION].2.19[SECTION]3. Obviously she had time till 19[SECTION]5 to assail the decree. However, she had filed an interlocutory application for setting aside the ex-parte decree and on dismissal of which she preferred a C.M.A. before this court. That was also dismissed.
[SECTION]. While the appellant would contend that the plaintiff in the present case is not entitled to exclude the period during which the I.A. for setting aside the ex-parte decree as well as the C.M.A. were pending, the contesting respondents would contend otherwise. They seek the aid of [SECTION] for this purpose. [SECTION] reads as follows:
"14. Exclusion of time of proceeding bona fide in Court without jurisdiction.- (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything, contained in [SECTION] o the [ACT], 190[SECTION], the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the Court under [SECTION] of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the Court or other cause of a like nature.
Explanation.- For the purposes of this section,- (a) in excluding the time during which a
former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
[SECTION]. A reading of [SECTION] shows that it affords protection against the bar of limitation to persons honestly pursuing his remedies, but failing because the court is unable to give them such trial. It aims at giving protection to a bona fide litigant from consequences of a mistake in prosecuting his claim. The principle is applicable to both 1) where a person brings a suit in the wrong court, and
2) where though he brings the suit in the right court, yet is unable to get a trial on merits by something which, though not of defect in its jurisdiction, is analogous to that defect. The principle is that limitation will remain suspended while the plaintiff was bona fide litigating for his rights in a court of justice. However, the following conditions should be satisfied:
i) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party.
ii) The prior proceedings had been prosecuted with due diligence and in good faith.
iii) The failure of the prior proceedings was due to the defect of jurisdiction or cause of like nature.
iv) The earlier proceeding and the later proceeding must relate to the same matter in issue, and
v) Both the proceedings are in a court.
In the case on hand, it could not be said that the plaintiff in the present suit failed in the earlier suit due to defect of jurisdiction. What is relied on are the words "other cause of a like nature". Normally, the words are to be read ejusdem generis, i.e., it must be interpreted as to convey something analogous to proceeding words 'from defect of jurisdiction'. It may not be possible to lay down an exhaustive list of all such causes; each case will depend upon the facts and circumstances of that case.
43. Learned counsel appearing for the respondents placed considerable reliance on the decision reported in Food Corporation of India v. Mohammed Kunhi (2009(3) K.L.T. 62[SECTION]) wherein it was held as follows:
"The purpose of [SECTION] of the [ACT] is to afford protection to a litigant against the bar of limitation when a civil proceeding prosecuted by him could not be decided on the merits because of the defect of jurisdiction or other cause of a like nature. [SECTION] is founded on the principles of justice, equity and good conscience. [SECTION] shall be interpreted liberally, however, with due regard to the express words in the section. To invoke [SECTION], it is not necessary that the plaintiff was prosecuting the previous proceeding as a plaintiff. A defendant in the previous proceeding is also entitled to exclusion of the period, provided the other ingredients of the section are satisfied.
In order to invoke [SECTION], the earlier proceeding and the later proceeding must relate to the same matter in issue. The interpretation of the expression "matter in issue" occurring in [SECTION] and [SECTION] of the [ACT] can be adopted while interpreting the expression "same matter in issue" in [SECTION] of the [ACT]. Whether the cause of action in the earlier proceeding and the subsequent proceeding is the same, would be an aid in deciding whether [SECTION] can be applied in a particular case. The reliefs claimed in the two proceedings may not always be decisive while considering the applicability of [SECTION] of the [ACT]."
44. Based on the above decision it is contended that since the plaintiff in the present case was prosecuting in a court of law the earlier proceedings and failed in its attempt due to a mistake. The period during which the I.A. for setting aside the ex-parte preliminary decree and C.M.A. before this court should be excluded.
45. The scope of [SECTION] was considered in the decision reported in Mac-N-Hom Systems v. P.S. Varrier (2003(3) K.L.T. [SECTION][SECTION]9) wherein it was held as follows:
"In order to attract the above mentioned provision the petitioner has to satisfy three conditions: (1) the petitioner has been prosecuting the other civil proceeding with due diligence, 92) the earlier proceeding and the subsequent proceeding must relate to the same matter in issue and (3) earlier proceeding must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature was unable to entertain it. In other words, identity of the matter in issue, due diligence and good faith of the petitioner and the absence of jurisdiction of other cause of a like nature, in the court which entertained the prior litigation are essential requisites for an application under [SECTION]. If the above mentioned essential requisites are present and the conduct of the person is bona fide, i.e. he has established his good faith, and he has been prosecuting with due diligence another civil proceeding, he is entitled to the benefit of this section or else he cannot take advantage of it. Further in order to attract the application of the section, the subsequent suit must be against the defendant in the previous case and in the two proceedings there should be the same subject matter, and the court in which the earlier suit was being prosecuted should be unable to entertain it from defect of jurisdiction or other cause of a like nature. The section applies in terms to suits as well as applications like O.33, R.2 in the instant case. If w hold that petitioner was prosecuting the proceeding before the Sub Court, Ernakulam with due diligence and in good faith as we have already indicated he is entitled to get the benefit of [SECTION]. The cardinal policy of the provisions of [SECTION] is to furnish protection against the bar of limitation to a person who honestly and diligently solicits a trial on merits in a forum having no jurisdiction and which forum cannot afford him such a trial. Petitioner cannot be said to have prosecuted the suit with due diligence within the meaning of [SECTION] when owing to his own negligence or default, the suit is so framed that the court cannot try it on the merits. Even if there is a wrong advice and party has acted by that advice that itself is not a ground to get the benefit of [SECTION] of the [ACT]. Legislature has advisedly used the words " due diligence" in [SECTION], so also the expression "good faith". This is a case where the respondent's lawyer has altered the petitioner and his lawyer as early as on 21.4.199[SECTION] that as per the agreement only the Sub Court, Tirur has got jurisdiction. The petitioner and his lawyer preferred to contest the preliminary objection raised by the respondent with regard to the jurisdiction of the Sub Court, Ernakulam and got an adverse order after the period of limitation. We are of the view that the petitioner was not prosecuting the matter with due diligence or in good faith before the Sub Court, Ernakulam. Under such circumstances, we are of the view that the petitioner is not entitled to get the benefit of [SECTION] of the [ACT]."
46. In the decision reported in Union of India v. West Coast Paper Mills Ltd. 2004) 3 SCC 45[SECTION]) it was held as follows:
"In the submission of Mr.[ENTITY], placing reliance on [PRECEDENT] to attract the applicability of [SECTION] of the Limitation At, the following requirements must be specified:
"6. (1) both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;
(2) the prior proceedings had been prosecuted with due diligence and in good faith;
(3) the failure of the prior proceedings was due to a defect of jurisdiction or other cause of a like nature;
(4) both the proceedings are proceedings in a court."
However, [SECTION] of the [ACT] is wide in its application, inasmuch as it is not confined in its applicability only to cases of defect of jurisdiction but it is applicable also to cases where the prior proceedings have failed on account of other causes of like nature. The expression "other causes of like nature" came up for the consideration of this court in [PRECEDENT] and it was held that [SECTION] of the [ACT] is wide enough to cover such cases where the defects are not merely jurisdictional strictly so called but others more or less neighbours to such deficiencies. Any circumstance, legal or factual, which inhibits entertainment or consideration by the court of the dispute on the merits comes within the scope of the section and a liberal touch must inform the interpretation of the [ACT] which deprives the remedy of one who has a right.
In our opinion, the period lost during the pendency of the writ proceedings is liable to be excluded from computing the period of limitation under [SECTION] of the [ACT]. Not only we have independently arrived at this finding on the submissions made by the learned counsel for the appellant, but we may also refer to the finding recorded by the three Judge Bench vide paragraphs 1[SECTION] and 1[SECTION] of the judgment dated 5.2.2004 wherein it has been specifically held that the respondents were also entitled to get the period during which the writ petition was pending excluded from computing the period of limitation and in that view of the matter, the civil suit was filed within the prescribed period of limitation. The finding recorded by the trial court as also the High Court that the respondents were entitled to the benefit of [SECTION] and [SECTION] of the [ACT] has been expressly upheld by the three-Judge Bench holding. "We have no reason to take a different view."
4[SECTION]. In the decision reported in Deena v. Bharat Singh (AIR 2002 SC 2[SECTION]6[SECTION]) it was held as follows:
"The main factor which would influence the court in extending the benefit of [SECTION] to a litigant is whether the prior proceeding had been prosecuted with due diligence and good faith. The party prosecuting the suit in good faith the the court having no jurisdiction is entitled to exclusion of that period. The expression 'good faith' as used in [SECTION] means "exercise of due care and attention. "In the context of [SECTION] expression 'good faith' qualifies prosecuting the proceeding in the court which ultimately is found to have no jurisdiction. The finding as to good faith or the absence of it is a finding of fact. This court in the case of Vijay Kumar Rampal and others v. Diwan Devi and others, AIR 19[SECTION]5 SC 1669, observed:
The expression 'good faith' qualifies prosecuting the proceeding in the Court which ultimately is found to have no jurisdiction. Failure to pay the requisite court fee found deficient on a contention being raised or the error of judgment in valuing a suit filed before a Court which was ultimately found to have no jurisdiction has absolutely nothing to do with the question of good faith in prosecuting the suit as provided in [SECTION] of the [ACT]."
The other expression relevant to be construed in this regard are 'defect of jurisdiction' and 'or other cause of a like nature'. The expression "defect of jurisdiction" on a plain reading means the Court must lack jurisdiction to entertain the suit or proceeding. The circumstances in which or the grounds on which, lack of jurisdiction of the court may be found are not enumerated in the section. It is to be kept in mind that there is a distinction between granting permission to the plaintiff to withdraw the suit with leave to file a fresh suit for the same relief under [SECTION] and exclusion of the period of pendency of that suit for the purpose of computation of limitation in the subsequent suit under [SECTION] of the [ACT]. The words "or other cause of a like nature" are to be construed ejusdem generis with the words 'defect of jurisdiction', that is to say, the defect must be of such a character as to make it impossible for the court to entertain the suit or application and to decide it on merits. Obviously [SECTION] will have not application in a case where the suit is dismissed after adjudication on its merits and not because the court was unable to entertain it."
4[SECTION]. In the decision reported in Zafar Khan v. Board of Revenue (AIR 19[SECTION]5 SC 39) it was held as follows:
"In order to attract the application of [SECTION], the parties seeking its benefit must satisfy the Court that : (i) the party as the plaintiff was prosecuting another civil proceeding with due diligence; (ii) that the earlier proceeding and the later proceeding relate to the same matter in issue and (iii) the former proceeding was being prosecuted in good faith in a court which, from defect of jurisdiction or other causes of a like nature, is unable to entertain it. When the expression in [SECTION] as a whole reads "from defect of jurisdiction or other cause of a like nature is unable to entertain it", the expression "cause of a like nature" will have to be read ejusdem generis with the expression "defect of jurisdiction". So construed the expression "other cause of a like nature" must be so interpreted as to convey something analogous to the preceding words "from defect of jurisdiction". Prima facie it appears that there must be some preliminary objection which if it succeeds, the court would be incompetent to entertain the proceeding on merits, such defect could be said to be "of the like nature" as defect of jurisdiction. Conversely if the party seeking benefit of the provision of [SECTION] failed in the earlier proceeding on merits and not on defect of jurisdiction or other cause of a like nature, it would not be entitled to the benefit of [SECTION]."
49. A reading of the above decisions will leave one in no doubt that while [SECTION] has to receive a liberal construction, it cannot be construed in such a manner so as to bring within its ambit any and every mistake or fault. In the decision in Food Corporation of India's case (supra) relied on by the learned counsel for the respondents the facts reveal that it was while considering a petition for condonation of delay that the scope of [SECTION] was considered. In the said provision it was held that it is not necessary that the plaintiff should have been prosecuting the earlier proceedings as a plaintiff, and that a defendant in the earlier proceeding is also entitled to exclusion of the period. However, as already noticed, the issue dealt with under the above decision is whether the plaintiff in the present suit should have been the plaintiff in the earlier suit.
50. If it is found that the earlier proceedings was being prosecuted before a court which had jurisdiction, the mere fact that either it rendered a wrong decision or even an illegal decision does not enable persons concerned to take the aid of [SECTION]. The interpretation of the words "other causes of a like nature" must as far as possible be that it should be of like nature of jurisdiction. While any legal or factual circumstance which inhibits entertainment or consideration by the court of the dispute on merits comes within the ambit of [SECTION], causes like dismissal for default, non-joinder of necessary parties, res judicata etc have not been considered as the casues of like nature. The word 'unable to entertain' does not mean unable to decide. The defect is such a nature so as to make it impossible for the court to entertain the application or suit at the very inception or decide the matter on merits. Merely because the relief could not have been granted, though the court had jurisdiction to decide the matter, does not enable the person concerned to invoke this provision. Having thus understood the provision, it follows that the plaintiff in the present suit cannot take aid of [SECTION] of the [ACT] at all.
51. If [SECTION] is not available to the plaintiff, obviously, as already noticed, at any rate, she should be credited with the knowledge of the preliminary decree atleast on 4.3.19[SECTION]3 when I.A.450 of 19[SECTION]3 to have the ex-parte preliminary decree set aside. Computing three years from that date, even assuming the plaintiff is entitled to do so, the time terminates on 4.3.19[SECTION]3. The suit was filed on 25.[SECTION].19[SECTION][SECTION].
52. One may recall the pleadings in the case. There is absolutely no pleading to the effect that the guardian was grossly negligent or that there was any collusion or fraud on the part of the guardian which had resulted in an ex-parte preliminary decree being passed against the plaintiff and others in O.S.103 of 19[SECTION]1. The argument that since the plaintiff was a minor at the time of inception of the suit, a decree came to be passed ex-parte due to the negligence of the guardian does not ipso facto enable the plaintiff to have the decree avoided or declared void. It could not be said that the decree in the earlier suit is a total nullity and the suit of the present nature is maintainable. At any rate, after attaining majority, the present plaintiff had opted to accept the preliminary ex-parte decree and had taken further proceedings to have the ex-parte preliminary decree set aside.
53. There are no materials to form an opinion that there was any fraud, collusion or gross negligence on the part of the guardian in prosecuting O.S.103 of 19[SECTION]1 on behalf of the minor. Further, no oral evidence has been adduced by the plaintiff in support of her claim of fraud, collusion or gross negligence. Fraud, collusion and gross negligence are not matters for inference but are to be pleaded and proved. It is essential for the plaintiff to narrate in the plaint the details of fraud, collusion or gross negligence, which she claims to be the basis for setting aside the earlier decree. The only pleading in the case on hand was that there was carelessness or negligence on the part of the guardian and that, according to the plaintiff, is sufficient to set aside the decree. Obviously, it is not. It could not be said that after having participated in the earlier proceedings and after having failed to have the ex-parte decree set aside in [CASE NUMBER], the plaintiff in the present suit could ignore the decree on the ground of negligence on the part of the guardian in the earlier proceedings. It is significant to note that the ex-parte preliminary decree was passed after the plaintiff in the present case had become a major and she had come on record as major. Going by [SECTION] [ACT] she had elected to continue the proceedings.
54. Thus it could be seen that none of the grounds relied on by the plaintiff to have the decree in O.S.103 of 19[SECTION]1 set aside is available to her and so also the suit is barred by limitation for reasons already made mention of. In the light of these findings, it is unnecessary to go into the contentions regarding the valuation of the suit raised by the appellant. It is contended that the valuation shown before the trial court was not proper. It becomes academic in the light of the other findings in the case.
In the result, this appeal is allowed, the impugned judgments and decrees are set aside and the suit shall stand dismissed. However, there will be no order as to costs.
[ENTITY], JUDGE sb.