1 S.B.CIVIL SECOND APPEAL NO.151/1993 Radhey Shyam & Ors. VS. Devkaran & Anr. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL SECOND APPEAL NO.151/1993. Radhey Shyam and Others. VERSUS Devkaran and Another. 21.04.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.B.L.Mandhana, for the appellants. Mr.Rinesh Gupta, for the respondents. ***** This second appeal has been filed by the defendant under Section 100 C.P.C. against the judgment and decree dated 28.05.1993 passed by the Additional District Judge, Chhabra confirming the judgment and decree dated 17.05.1986 passed by the Munsif, Chhabra in Civil Suit No.37/1978 whereby the learned trial court decreed the suit for specific performance of contract of sale in favour of the plaintiff. This court while admitting the appeal framed the following substantial question of law on 14.09.1993:- “Whether the ex-parte proceedings could be taken against the appellants No.2 and 3, who were impleaded as defendants in the suit by the plaintiff-respondent and the decree having been passed against them without appointment of guardian ad litem is illegal?” With a view to appreciate the aforesaid question 2 S.B.CIVIL SECOND APPEAL NO.151/1993 Radhey Shyam & Ors. VS. Devkaran & Anr. that was framed, the facts in respect thereof may be summarized as follows:- The plaintiff-respondent filed a suit on 26.07.1978 for specific performance of the contract dated 17.06.1968 allegedly executed by the father of the appellants No.2 and 3 and the husband of the appellant No.4 as well as the father of the appellant No.1, Mathuralal in favour of the plaintiff. Mathuralal is reported to have died somewhere in the year 1973. In the plaint which was filed by the plaintiff, the appellants No.2 and 3 Satyanarain and Anokhi Bai were stated to be the minors in the plaint itself. Owing to this fact, the plaintiff moved an application on 26.07.1978 itself under Order 32 Rule 4 read with Section 151 C.P.C. for the appointment of guardian ad litem on behalf of the minor defandants. Summons were issued and during the course of trial, it was pointed out before the learned trial court on 03.12.1983 that no order on the application for appointment of guardian ad litem has been passed by the court. On 03.12.1983, the learned trial court recorded the following order:- “3.12.83 वकील वादी उप. वकील वादी के अनुसार उन् होने िदनांक 20-4-83 को minor सत् यनारायण व अनोख के gua-r dian िनयुक् त करने बाबत दरख् वाः त पेश कर रखी है । इस पर आदेश होना है । सत् यनारायण व अनोख के guardian ौीमती गोपाली को संरक्षण िनयुिक् त के बाबत नोिटस भेजा जावे। िदनांक 21-1-84 को पेश हो ।" It appears that the aforesaid notice was not issued and the case was adjourned on 21.01.1984 for 26.04.1984. The 3 S.B.CIVIL SECOND APPEAL NO.151/1993 Radhey Shyam & Ors. VS. Devkaran & Anr. order dated 26.04.1984 reads as follows:- “26.4.84 वकील वादी उप. अूाथȸगण सत् यनारायण व अनोख बाई के guardian ौीमती गोपाली को नोिटस जारी हो । पऽावली िदनांक 31/5/84 को पेश हो ।" On 31.05.1984 the ordersheet of the learned trial court reads as follows:- “31.5.84 वकील वादी उप. अूाथȸगण के guardian गोपाली बाई बावजूद तामील उप. नही है अत: उन् के िवरूƨ एकतरफा कायर्वाही की जाती है । पऽावली वाः ते सबूत एकतरफा मे िदनांक 19/7/84 को पेश हो ।" Thereafter, the proceedings before the learned trial court progressed for recording the evidence of the plaintiff ex-parte. The next date fixed was 19.07.1984 and the case was adjourned again for the evidence of the plaintiff ex-parte to 20.09.1984. On 20.09.1984 also the case was again adjourned for 05.11.1984. On 05.011.1984 it appears that the defendant filed an application for setting aside the ex-parte order and the case was adjourned to 03.12.1984. On 03.12.1984 the case was again adjourned for arguments on the application to 25.02.1985. On 25.02.1985, the learned trial court after hearing both the sides passed following order:- “25/2/85 उभय पक्ष के अिधवक् ता उप. व एकतरफा ूमािणत आदेश िदनांक 31-5-84 को 25/- cost पर set aside िकया जाता है । पऽावली वाः ते सबूत वादी िदनांक 8/5/85 को पेश हो ।" The submissions of the learned counsel for the appellant is that once the order for proceeding ex- parte against the defendants No.2 and 3 had been set 4 S.B.CIVIL SECOND APPEAL NO.151/1993 Radhey Shyam & Ors. VS. Devkaran & Anr. aside, the learned trial court ought to have afforded an opportunity to the defendants No.2 and 3 for filing their written statement having been satisfied that there was sufficient cause for their non-appearance in pursuance of the notice which was ordered to be issued to them on 03.12.1993 on which the first date after service was fixed as 31.05.1984. It is submitted that in case the defendants No.2 and 3 had appeared on 31.05.1984 they would have been entitled for submitting their written statement in response to the aforesaid notice which had been issued by the learned trial court. Learned counsel for the appellant contended that before the learned lower appellate court also the aforesaid plea was raised by the appellant in respect of the order dated 25.02.1985 by which the order dated 31.05.1984 was set aside and the learned trial court did not afford any opportunity to the defendants No.2 and 3 who were admittedly minors, for affording an opportunity for filing the written statement after the order for proceeding ex-parte against them had been set aside. In this respect, the decision of the learned appellate court is as follows:- "...अपीलाथȸ ूितवादीगण के िवƮान अिध. ने सवर्ूथम य ह आपित् त उठाई है िक ूितवादीगण के जवाब दावा ूः तुत करने का पूरा अवसर नहीं िदया गया है । मैंने अधीनः थ न् यायालय की पऽावली का ध् यानपूवर्क अध् ययन िकया है । ूितवादीगण को अपना जवाब दावा ूः तुत करने के िलये काफी अवसर ूदान िकया गया था, इसिलये वे इस आधार पर कोई सहायता पाने के अिधकारी नहीं है ।" Learned counsel for the appellant submits that 5 S.B.CIVIL SECOND APPEAL NO.151/1993 Radhey Shyam & Ors. VS. Devkaran & Anr. the above findings given by the learned lower appellate court are contrary to the material available on record more particularly with reference to the ordersheet commencing from 03.12.1983 to 31.05.1984 which clearly shows that the notices were ordered to be issued to the guardian of the minor defendants on 03.12.1983 and for the first time after the natural guardian being served with the aforesaid notice, the date fixed for their appearance through the natural guardian was 31.05.1984, on which date the natural guardian of the minor defendants failed to appear and file a written statement and the order to proceed ex-parte was passed against the minor defendants. He has further submitted that even assuming that the natural guardian of the minor defendants did not appear on the date fixed, the court could not have proceeded with the ex-parte proceedings against the minor defendant and ought to have proceeded to appoint the guardian ad litem on their behalf for defending the suit on behalf of the minor defendants where the natural guardian does not take steps to defend the rights of the minor. Learned counsel appearing for the respondents, on the other hand, submits that several opportunities were granted to the defendants to filed their written statement and only when they failed to file written statement between the period 25.09.1978 to 25.05.1981. Thereafter, on 25.05.1981 the learned trial court passed the order for proceeding with the trial ex- parte and fixed the case for evidence of the plaintiff. 6 S.B.CIVIL SECOND APPEAL NO.151/1993 Radhey Shyam & Ors. VS. Devkaran & Anr. However, the learned counsel for the respondents did not dispute the fact that for the first time the notice for the appearance of the minor defendants through their natural guardian was issued on 03.12.1983 and the first date for their appearance was 31.05.1984. It was also not in dispute that the learned trial court did not proceed to appoint any guardian ad litem after the natural guardian failed to appear in the court and the ex-parte proceedings were commenced against the minor defendants vide order dated 31.05.1984 which was the first date for their appearance after service of summons to answer the plaint/framing of issues which would entitle them to file their written statement on the said date. It has to be borne in mind that while setting aside the order passed ex-parte under Order 9 Rule 7 C.P.C. the parties are entitled to be placed in the same position in which they were on the date when the said order was passed. In the present case no doubt there was an earlier order dated 25.05.1981 passed by the learned trial court for proceeding ex- parte against the defendants and the case was fixed for the evidence of the plaintiff in which case if the ex- parte order dated 31.05.1984 was to be set aside the order dated 25.02.1985 setting aside the ex-parte order and fixing the case for evidence of the plaintiff would be in accordance with law. But in the instant case, after 25.05.1981 on 03.12.1983 realising that service upon the minor defendants was not proper and a guardian was to be appointed to defend their interest notices were issued to the minor defendants through their natural guardian for their appearance to defend 7 S.B.CIVIL SECOND APPEAL NO.151/1993 Radhey Shyam & Ors. VS. Devkaran & Anr. the suit and 31.05.1984 was the first date for their appearance. In case they had appeared in response to their summons for appearance on 31.05.1984 they would have been entitled to defend the suit and contest it by filing their written statement notwithstanding the earlier order to proceed ex-parte passed on 25.05.1981 and fixing the case for the evidence of the plaintiff. That is the distinction which shall have to be kept in mind while dealing with the rights of the minor defendants. Once the order dated 31.05.1984 which was the first date for the appearance of the minors to answer the summons and for filing of their written statement was set aside on 25.02.1985 the minor defendants should have been put in the same position as the proceedings stood on 31.05.1984 and afforded them an opportunity to file the written statement not fixing the case for the evidence of the plaintiff. A perusal of the order of the learned lower appellate court goes to show that the learned lower appellate court has only taken into consideration the ordersheets pertaining to the filing of the written statement prior to 25.05.1981 and not after the order dated 03.12.1983 was passed, issuing the summons to the minor defendants through their natural guardian, the mother, failed to appear on 31.05.1984 i.e. the date fixed. There is yet another aspect of the matter. It would be the duty of the court when the natural guardian 8 S.B.CIVIL SECOND APPEAL NO.151/1993 Radhey Shyam & Ors. VS. Devkaran & Anr. failed to appear in response to the summons on 31.05.1984 to have appointed a guardian ad litem for defending the case on behalf of the minor defendants. In this case, the learned trial court having ordered for appointment of mother as to act as a natural guardian on behalf of the minor defendants and the notice having been served upon the mother, the natural guardian, in the event the natural guardian fails to appear and participate and protect the interest of the minor defendants at the trial, it became the duty of the court to have appointed guardian ad litem apart from the natural guardian who failed to take necessary steps to protect the interest of the minor and defend the suit on their behalf. In that view of the matter, the order dated 31.05.1984 to proceed exparte was clearly illegal and is liable to be quashed and set aside as the court failed to take proper steps to protect the interest of the minors. As has already been stated and explained above, it was for the first time that the notices were issued to the minor defendants through their natural guardian in pursuance of the order dated 03.12.1983 and the summons have been issued only for the purpose of settlement of the issues thereby giving opportunity to the minor defendants to file their written statement. It makes little difference where prior to the issuance of the notice, the case was fixed for the evidence of the plaintiff ex-parte and once the learned trial court came 9 S.B.CIVIL SECOND APPEAL NO.151/1993 Radhey Shyam & Ors. VS. Devkaran & Anr. to the conclusion that the notices are required to be issued to the minor defendants, and such notices were in fact issued for the appearance of the minor defendants, the notices could only be issued for the settlement of the issues and affording an opportunity to the minor defendants to file their written statement. The provisions of Order 9 Rule 7 C.P.C. reads as follows:- “7. Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non- appearance.- Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.” A perusal of the above rule goes to show that in a suit which has been ordered to proceed ex-parte, if the defendant appears and shows good cause for his non- appearance on the date when the order to proceed ex- parte was passed and the court is satisfied that there was good cause for his non-appearance on the said date the court shall permit the defendant to be heard in answer to the suit “as if he had appeared on the day fixed for his appearance.” Thus, once the ex-parte order dated 31.05.1984 came to be set aside by the learned trial court vide its order dated 25.02.1985, the trial stood relegated so far as the minor defendants are concerned to the stage when the ex-parte order was passed against them on 31.05.1984, which was the 10 S.B.CIVIL SECOND APPEAL NO.151/1993 Radhey Shyam & Ors. VS. Devkaran & Anr. date fixed for their appearance through their natural guardian for the settlement of the issues and filing of the written statement in answer to the suit and thus vide order dated 25.02.1985 while setting aside the ex- parte order dated 31.05.1984 the court should have afforded an opportunity to the defendants (minors) to file their written statement rather than fixing the case for the plaintiff's evidence. In the facts and circumstances, therefore, so far as the substantial question of law which has been framed by this court in the present appeal is concerned, the same deserves to be answered in favour of the minor appellants that the ex-parte proceedings having been set aside by order dated 25.02.1985, the learned trial court could not have carried on the proceedings of the trial for recording the evidence of the plaintiff without affording any opportunity to the minor appellants/defendants to file their written statement in defence of the suit filed by the plaintiff. In the facts and circumstances, I am inclined to allow this appeal and set aside the judgment and decree passed by the two courts below and remand the case to the learned trial court with a direction that it would afford an opportunity to the minor defendants/appellants No.2 and 3 herein for filing the written statement and then proceed with the trial afresh. 11 S.B.CIVIL SECOND APPEAL NO.151/1993 Radhey Shyam & Ors. VS. Devkaran & Anr. In the facts and circumstances, there shall be no order as to costs. The cost shall abide the final outcome of the trial. The parties are directed to appear before the learned trial court on 13.07.2009. The Registry is directed to return the record of the courts below. (DALIP SINGH),J. Solanki DS, Jr.P.A.