K. P. NATARAJAN & ANR. versus MUTHALAMMAL & ORS.
[2021] 5 S.C.R. 350, Supreme Court of India, 2021
Outcome: Dismissed (Dismissed)
Segment: Body
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   [2021] 5 S.C.R. 350
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K. P. NATARAJAN & ANR.
v.
MUTHALAMMAL & ORS.
(Special Leave Petition (C) No. 2492 of 2021)
JULY 16, 2021
[INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]
Code of Civil Procedure, 1908: Or.XXXII, r.3 – Suit for specific
performance filed by the petitioner – Respondents-defendants after
having entered appearance through counsel, remained ex parte –
In the plaint, the third defendant was described as minor represented
by the next friend (minor’s father) – Petitioners had filed along
with the plaint, an application under Or. XXXII, r.3 for appointing
second respondent (minor’s father) as guardian – Petitioner had
also sought alternate relief, a decree for refund of the money paid
with interest in the event of the Court not granting the relief of
specific performance – However, trial court passed ex parte decree
holding petitioner entitled to relief of specific performance – Even
in execution proceedings, respondents were set ex parte and
execution petition was allowed – Thereafter, respondents filed
application for setting aside ex parte order in execution petition –
Meanwhile, petitioners were called upon to deposit non-judicial
stamp papers of Rs.1,98,000/- for execution of sale deed – They
did so and sale deed was executed – It was only thereafter that
respondents filed application for condonation of the delay of 862
days for setting aside the ex-parte decree – This application was
dismissed by
trial court – Aggrieved respondents filed revision
petition under s.115 of the Code before High Court – Entertaining
a doubt about appointment of a guardian, High Court summoned
original records – Finding that I.A filed along with the plaint for
the appointment of guardian was not properly dealt with and that
there was no appointment of a guardian for minor as required under
Or.XXXII, r.3, High Court invoked the general power of
superintendence under Art.227 of the Constitution and set aside
ex-parte decree itself, without going into the question of delay and
without examining whether there was sufficient cause for
condonation of delay – In order to ensure that the petitioners/decree
holders are not poorer after a decree (or because of the decree),
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High Court put the respondents on condition that they should pay
of Rs.2,50,000/- as cost to petitioners as the petitioners/decree
holders had already deposited stamp papers and got the sale deed
executed – Respondents deposited cost of Rs.2,50,000/- – As a
consequence, trial court took up the suit for trial after framing
issues – Aggrieved petitioner filed instant special leave petition –
Held: No dispute on facts that the respondents were grossly negligent
in defending the suit as well as the execution proceedings – However,
High Court had found, after summoning the records from trial court
that as a matter of fact, trial Court failed to appoint a guardian for
the minor in a manner prescribed by law – An application was in
fact filed by petitioners under Or. XXXII, r.3 – The said application
was closed by trial Court – The manner in which the trial Court
disposed of the application under Or.XXXII, r.3 is improper and
cannot at all be sustained – It is true that High Court was dealing
only with a revision petition arising out of an order dismissing a
petition under s.5 of the Limitation Act, 1963 – But it does not take
away or curtail the jurisdiction of High Court to look into the records
with particular reference to an important rule of procedure,
especially when the same relates to something concerning persons
under disability – The rigorous nature of the Madras amendment to
r.3 of Or.XXXII, is perhaps to be attributed to the wider jurisdiction
that
the High Court exercised on its original side, under Clause-17
of the Letters Patent and the parens patriae jurisdiction that a Court
normally exercises while dealing with cases of minors – Therefore,
there is no illegality in the action of the High Court in summoning
the original records in the suit and finding out whether or not a
guardian of a minor defendant was appointed properly in
accordance with the procedure prescribed in Or.XXXII, r.3, even in
the absence of a specific contention being raised by the petitioners
– The contention that in a revision arising out of the dismissal of a
petition under s.5 of the Limitation Act, 1963, the High Court cannot
set aside the ex-parte decree itself, by invoking the power under
Art.227 is not acceptable – It is too well settled that the powers of
the High Court under Art.227 are in addition to and wider than the
powers under s.115 of the Code – High Court did not commit error
of jurisdiction in invoking Art.227 and setting aside the ex-parte
decree – In fact High Court also went into the question whether a
decree passed against a minor without proper appointment of a
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guardian, is a nullity ipso facto or whether the same would depend
upon prejudice against the minor being established – High Court
also found that in this case, the minor was prejudiced.
Dismissing the special leave petition, the Court
HELD: 1. There is no dispute on facts and there is no
escape from the conclusion that the respondents have been
grossly negligent in defending the suit as well as the execution
proceedings. But the fact remains that while the parties can afford
to remain negligent, the Court cannot. The High Court has found,
after summoning the records from the trial Court that as a matter
of fact, the trial Court failed to appoint a guardian for the third
respondent/minor in a manner prescribed by law. An application
was in fact filed by the petitioners-herein/plaintiffs under Order
XXXII, Rule 3 of the Code in I.A No.981 of 2013. The said
application was closed by the trial Court by an Order passed on
23.03.2014. The manner in which the trial Court disposed of the
application under Order XXXII, Rule 3, is without doubt, improper
and cannot at all be sustained, especially in the teeth of the Madras
Amendment. [Para 14][358-D-G]
2. Order XXXII, Rule 3, is found in the First Schedule to
the Code. Under Section 121 of the Code, the Rules in the First
Schedule shall have effect as if enacted in the body of the Code
until annulled or altered in accordance with the provisions of Part-
X, which comprises of
Sections 121 to 131. The High Courts are
empowered under Section 122 of the Code to annul/alter or add
to all or any of the Rules in the First Schedule, for regulating the
procedure of the civil courts subject to their superintendence.
In exercise of such a power, the High Court of Judicature at
Madras has made Rule 3 of Order XXXII of the Code, much more
elaborate than how the Rule was originally framed. [Paras 15,
16][358-G-H; 359-A-B]
3. In the impugned order, the Judge has extracted Order
XXXII, Rule 3 of the Code in its original form. But in its application
to civil courts subject to the superintendence of the Madras High
Court Order XXXII.There is a great deal of difference between
the Rules of Procedure laid down in Rule 3 of Order XXXII by
the Central Act and Rule 3 as applicable to civil courts subject to
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the superintendence of Madras High Court. A comparison of the
two sets of Rules show that the rules applicable to Courts subject
to the superintendence of the Madras High Court are more
elaborate and also rigorous. (i) Sub-rules (1) and (2) of Rule 3 of
the Rules applicable to Courts subject to the superintendence of
the Madras High Court “applicable rules” are additional
requirements; (ii) that sub-rule (3) of Rule 3 of the ‘applicable
rules’ is a reproduction of sub-rule (1) of Rule 3 of the original
Code; (iii) that sub-rule (3-A) of Rule 3 of the ‘applicable rules’ is
a reproduction of sub-rule (5) of the Central Act; (iv) sub-rule (7)
of Rule 3 of the ‘applicable rules’ is an improved version of sub-
rule (4) of Rule 3 of the Central Act. [Paras 17, 18, 19][359-B-C;
362-G-H; 363-G-H; 364-A-B]
4. More importantly sub-rules (4), (5), (6) and a part of sub-
rule (7) of Rule 3 of Order XXXII of the ‘applicable rules’ prescribe
certain additional requirements which are as follows:- (i) when an
application for the appointment of a guardian is by the plaintiff, it
shall set forth in the order of their suitability, a list of persons
with their full addresses for service of notice in Form No.11-A
set forth in Appendix H, who are competent and qualified to act
as guardian for the minor defendant; (ii) the application for
appointment of a guardian should be supported by an affidavit,
not merely verifying (as in the Central Act) the fact that the
proposed
guardian has no interest in the matters in controversy
adverse to that of the minor, but also stating additional particulars
including the name and address of the de-facto guardian and the
names and addresses of other suitable persons, whenever a
natural or de-facto guardian is not permitted to act. [Para 20]
[364-B-D]
5. Admittedly, the Judge summoned the records from the
trial Court after entertaining a doubt about the procedure followed
by the trial Court in this case and found as a matter of fact that
the trial Court failed to appoint a guardian for the third defendant
as required by Order XXXII, Rule 3. The power of the Judge to
call for the records and examine the same, in a revision under
Section 115(1) of the Code is not and cannot be doubted or
questioned by the petitioners. It is true that the Judge was dealing
only with a revision petition arising out of an Order dismissing a
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petition under Section 5 of the Limitation Act, 1963. But it does
not take away or curtail the jurisdiction of the High Court to look
into the records with particular reference to an important rule of
procedure, especially when the same relates to something
concerning persons under disability. The rigorous nature of the
Madras amendment to Rule 3 of Order XXXII, is perhaps to be
attributed to the wider jurisdiction that the High Court exercised
on its original side, under Clause-17 of the Letters Patent and
the parens patriae jurisdiction that a Court normally exercises
while dealing with cases of minors. Therefore, there is no illegality
in the action of the High Court in summoning the original records
in the suit and finding out whether or not a guardian of a minor
defendant was appointed properly in accordance with the
procedure prescribed in Order XXXII, Rule 3, even in the
absence of a specific contention being raised by the petitioners.
[Para 21][364-D-H; 365-A]
6. The contention that in a revision arising out of the
dismissal of a petition under Section 5 of the Limitation Act, 1963,
the High Court cannot set aside the ex-parte decree itself, by
invoking the power under Article 227 is not acceptable. It is too
well settled that the powers of the High Court under Article 227
are in addition to and wider than the powers under Section 115 of
the Code. The High Court did not committed error of jurisdiction
in
invoking Article 227 and setting aside the ex-parte decree. In
fact the Judge also went into the question whether a decree
passed against a minor without proper appointment of a guardian,
is a nullity ipso facto or whether the same would depend upon
prejudice against the minor being established. The Judge found
that in this case, the minor was prejudiced. [Paras 22, 23][365-A-
B, D-E]
Surya Dev Rai vs. Ram Chander Rai and Others (2003)
6 SCC 675 : [2003] 2 Suppl. SCR 290; Radhey Shyam
& Anr. vs. Chhabi Nath & Others (2015) 5 SCC 423 :
[2015] 3 SCR 197 – referred to.
Lanka Sanyasiv.Lanka Yerran Naidu 1929 Law Weekly
455; Divya Dip Singh and others v. Ram Bachan Mishra
and others (1997) 1 SCC 504 : [1996] 7 Suppl.
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SCR 705; Anandram and another v. Madholal and
others AIR 1960 Raj 189; Rangammal v. Minor
Appasami 85 Law Weekly 574 – distinguished.
Ouseph Joseph v. Thoma Eathamma AIR 1956 TC 26
– held inapplicable.
Case Law Reference
[2003] 2 Suppl.  SCR 290  
referred to
Para 22
[2015] 3 SCR 197 
referred to
Para 22
[1996] 7 Suppl. SCR 705 
distinguished
Para 31
CIVIL APPELLATE JURISDICTION : Special Leave Petition
(C) No. 2492 of 2021.
From the Judgment and Order dated 14.09.2020 of the High Court
of Judicature at Madras in CRP. NPD. No.959 of 2018.
S. Nagamuthu, Sr. Adv., M. P. Parthiban, Advs. for the Petitioners.
M. A. Chinnasamy, C. Rubavathi, M. Veeraragavan, Ch. Leela
Sarveswar, V. Senthil Kumar, P. Rajaram, Advs. for the Respondents.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
1. In a Civil Revision Petition filed under Section 115 of the Code
of Civil Procedure, 1908 (for short “the Code”), challenging an order of
the trial Court refusing to condone the delay of 862 days in seeking to
set aside an ex-parte decree for specific performance, the High Court
found that the ex-parte decree was a nullity, as it was passed against a
minor without the minor being represented by a guardian duly appointed
in terms of the procedure contemplated under Order XXXII, Rule 3 of
the Code. Therefore, the High Court, exercising its power of
superintendence under Article 227 of the Constitution, set aside the ex-
parte decree itself on condition that the
petitioners before the High Court/
defendants pay a sum of Rs.2,50,000/-, representing the amount already
spent by the decree holders in purchasing stamp paper etc. Aggrieved
by the said order of the High Court, the decree holders are before us in
this special leave petition.
2. We have heard Mr. S. Nagamuthu, learned senior Counsel
appearing for the petitioners/plaintiffs and Mr. R. Balasubramanian,
learned senior counsel appearing for the respondents/defendants.
K. P. NATARAJAN & ANR. v. MUTHALAMMAL & ORS.
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3. In a suit O.S. No.264 of 2013 filed by the petitioners-herein for
specific performance of an agreement of sale dated 25.04.2011, the
respondents were duly served with summons, but after having entered
appearance through counsel they remained ex-parte. The trial Court
decreed the suit ex-parte on 08.04.2015.
4. At this stage it may be relevant to take note of one fact, namely,
that the petitioners sought, as an alternate relief, a decree for refund of
the money paid with interest at 18% per annum in the event of the Court
not granting the relief of specific performance. But the trial Court held
albeit without reasons, that the petitioners are entitled, for the primary
relief of specific performance.
5. In the plaint as it was filed by the petitioners-herein, the third
defendant was described as “minor S Aravindarajan, aged about 16
years, son of Sampathkumar represented by the next friend father
M. Sampathkumar”. Therefore, the petitioners had filed, along with
the plaint, an application in I.A No.981 of 2013 under Order XXXII,
Rule 3 of the Code for appointing the second respondent-herein (his
father and the second defendant) as the guardian of the minor. As noted
by the High Court, the trial Court, after serving notice on the second
defendant, passed an Order in I.A.No. 981 of 2013 on 23.03.2014 to the
following effect:-
“Batta served. Vakalat by guardian to minor filed.
Hence this petition is closed.”
6. Seeking
execution of the decree, the petitioners filed E.P No.33
of 2015. Notices were served on all the respondents in the Execution
Petition and the Execution Petition is said to have come up for hearing
on two dates in December-2015 and on several dates in the year 2016.
Eventually the respondents were set ex-parte in the Execution Petition
on 18.10.2016 and the petition was allowed.
7. Thereafter the respondents filed an application in November-
2016 for setting aside the ex-parte order in the Execution Petition. It
was numbered only in the year 2017 as E.A. No.40 of 2017.
8. But in the meantime the petitioners were called upon to deposit
non-judicial stamp papers of the value of Rs.1,98,000/- for the execution
of the sale deed. They did so and a sale deed was in fact executed by
the Court on 04.01.2017.
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9. It is only thereafter that the respondents filed an application in
I.A No.142 of 2017 for condonation of the delay of 862 days in seeking
to set aside the ex-parte decree. This application filed on 19.09.2017
was dismissed by the trial Court by an order dated 28.11.2017, primarily
on three grounds namely: (i) that there was no proper explanation for
the delay; (ii) that even the written statement was not filed within the
time stipulated in Order VIII, Rule 7; and (iii) and that after allowing
even the execution to proceed ex-parte and after having allowed the
sale deed to be executed by the Executing Court, the respondents cannot
seek condonation of the huge delay.
10. Aggrieved by the dismissal of the petition to condone the delay
in seeking to set aside the ex-parte decree, the respondents filed a revision
petition under Section 115 of the Code before the High Court. Entertaining
a doubt about the appointment of a guardian for the third defendant, the
learned Judge summoned the original records in the suit from the trial
Court. Finding that I.A No.981 of 2013 filed along with the plaint for the
appointment of a guardian for the third defendant, was not properly dealt
with and that there was no appointment of a guardian for the minor as
required under Order XXXII, Rule 3, the learned Judge invoked the
general power of superintendence under Article 227 of the Constitution
and set aside the ex-parte decree itself, without going into the question
of
delay and without examining whether there was sufficient cause for
condonation of delay. In order to ensure that the petitioners/decree holders
are not poorer after a decree (or because of the decree), the learned
Judge put the respondents on condition that they should pay of Rs.2,50,000/
- as cost to the petitioners-herein on or before 16.10.2020, as the
petitioners/decree holders had already deposited stamp papers of the
value of Rs.1,98,000/- and got the sale deed executed.
11. It appears that pursuant to the aforesaid order of the High
Court, the respondents deposited the cost of Rs.2,50,000/- on 12.10.2020.
As a consequence, the trial Court appears to have taken up the suit for
trial after framing issues. It is stated by Mr. R. Balasubramanian, learned
senior counsel for the respondents that the suit now stands posted for
examination of PW-1.
12. The main grounds of attack, to the impugned order of the
High Court, as articulated by Mr. S. Nagamuthu, learned senior counsel
for the petitioners are :- (i) that the High Court ought not to have set
aside an ex-parte decree, in a revision petition arising out of an application
K. P. NATARAJAN & ANR. v. MUTHALAMMAL & ORS.
[V. RAMASUBRAMANIAN, J.]
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under Section 5 of the Limitation Act, 1963; (ii) that the Court was not
even entitled to invoke equity in favour of the respondents who were
grossly negligent, first in defending the suit, next in defending the
executing proceedings and then in seeking to set aside the ex-parte decree
after nearly a year of seeking to set aside the ex-parte order passed in
the Execution Petition; and (iii) that it was not even one of the grounds
raised or points argued by the respondents-herein in their revision petition
before the High Court either that the procedure prescribed under Order
XXXII, Rule 3 of the Code was not followed or that a grave prejudice or
injustice has been caused to the defendant/minor, on account of the failure,
if any, on the part of the trial Court.
13. Mr. R. Balasubramanian, learned senior counsel appearing
for the respondents contended in response, that the revisional jurisdiction
of the High Court under Article 227 are wider in nature and that when
the High Court finds that the trial Court has not taken care of the interest
of the minor who was a party to the proceeding, by following the
procedure prescribed by law, the High Court cannot shut its eyes on the
basis of technicalities.
14. We have carefully considered the rival contentions. There is
no dispute on facts and there is no escape from the conclusion that the
respondents have been grossly negligent in defending the suit as well as
the execution
proceedings. But the fact remains that while the parties
can afford to remain negligent, the Court cannot. The High Court has
found, after summoning the records from the trial Court that as a matter
of fact, the trial Court failed to appoint a guardian for the third respondent/
minor in a manner prescribed by law. As pointed out earlier, an application
was in fact filed by the petitioners-herein/plaintiffs under Order XXXII,
Rule 3 of the Code in I.A No.981 of 2013. The said application was
closed by the trial Court by an Order passed on 23.03.2014, which we
have extracted elsewhere. The manner in which the trial Court disposed
of the application under Order XXXII, Rule 3, is without doubt, improper
and cannot at all be sustained, especially in the teeth of the Madras
Amendment.
15. Order XXXII, Rule 3, is found in the First Schedule to the
Code. Under Section 121 of the Code, the Rules in the First Schedule
shall have effect as if enacted in the body of the Code until annulled or
altered in accordance with the provisions of Part-X, which comprises of
Sections 121 to 131. The High Courts are empowered under Section
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122 of the Code to annul/alter or add to all or any of the Rules in the First
Schedule, for regulating the procedure of the civil courts subject to their
superintendence.
16. In exercise of such a power, the High Court of Judicature at
Madras has made Rule 3 of Order XXXII of the Code, much more
elaborate than how the Rule was originally framed.
17. In the impugned order, the learned Judge has extracted Order
XXXII, Rule 3 of the Code in its original form. But in its application to
civil courts subject to the superintendence of the Madras High Court
Order XXXII, Rule 31 actually reads as follows:-
‘“3. Qualifications to be a next friend or guardian. –
(1) Any person who is of sound mind and has attained majority
may act as next friend of a minor or as his guardian for the
suit:
Provided that the interest of that person is not adverse
to that of the minor and that he is not in the case of a next
friend, defendant, or in the case of a guardian for the suit, a
plaintiff.
(2) Appointed or declared guardians to be preferred
and to be superseded only for reasons recorded. – Where a
minor has a guardian appointed or declared by competent
authority no person other than the guardian shall act as the
next friend of the minor or be appointed his guardian for the
suit unless the Court considers, for reasons to be recorded,
that it is for the minor’s welfare that another person be
permitted to act or be appointed, as the case may be.
(3) Guardians to be appointed by
Court.- Where the
defendant is a minor, the Court, on being satisfied of the fact
of his minority, shall appoint a proper person to be guardian
for the suit for the minor.
(3A) A person appointed under sub-rule (3) to be
guardian for the suit for a minor shall unless his appointment
1 The amendment was made by a Notification in P. Dis. No.256 of 1938 Vide St. George
Gazette, dated 13-3-1938. Unfortunately most of the Bare Acts published in recent times
and even the 19th Edition of Mulla on the Code of Civil Procedure does not make a
mention of the Notification number and date in so far as the Madras Amendment is
concerned.
K. P. NATARAJAN & ANR. v. MUTHALAMMAL & ORS.
[V. RAMASUBRAMANIAN, J.]
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is terminated by retirement, removal or death continue as such
throughout all proceedings arising out of the suit including
proceedings in any appellate or revisional Court and any
proceeding in execution of a decree.
(4)Appointment to be on application and where
necessary after notice to proposed guardian.- An order for
the appointment of a guardian for the suit may be obtained
upon application in the name and on behalf of the minor or
by the Plaintiff. The application, where it is by the plaintiff,
shall set forth, in the order of their suitability, a list of persons
(with their full addresses for service of notice in Form No.
11A set forth in Appendix H. Hereto) who are competent and
qualified to act as guardian for the suit for the minor
defendant. The Court may, for reasons to be recorded in any
particular case, exempt the applicant from furnishing the list
referred to above.
(5)Contents of affidavit in support of the application
for appointment of guardian.- The application referred to in
the above sub-rule whether made by the plaintiff or on behalf
of the minor defendant shall be supported by an affidavit
verifying the fact that the proposed guardian has not or that
no one of the proposed guardians has any interest in the
matters in controversy in the suit adverse to that of the minor
and that the proposed guardian or guardians are fit persons
to be so appointed. The affidavit shall further state according
to
the circumstances of each case (a) particulars of any
existing guardian appointed or declared by competent
authority, (b) the name and address of the person, if any,
who is the de facto guardian of the minor, (c) the names and
addresses of persons, if any, who in the event of either the
natural or the de facto guardian or the guardian appointed
or declared by competent authority, not being permitted to
act, are by reason of relationship or interest or otherwise,
suitable persons to act as guardians for the minor for the
suit.
(6)Application for appointment of guardian to be
separate from application for bringing on record the legal
representatives of a deceased party. – An Application for the
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appointment of a guardian for the suit of a minor shall not be
combined with an application for bringing on record the legal
representatives of a deceased plaintiff or defendant. The
applications shall be by separate petitions.
(7) Notice of application to be given to persons
interested in the minor defendant other than the proposed
guardian.– No order shall be made on any application under
sub-rule (4) above except upon notice to any guardian of the
minor appointed or declared by an authority competent in
that behalf or where there is no guardian, upon notice to the
father or other natural guardian of the minor, or where there
is no father or other natural guardian, to the person in whose
care the minor is, and after hearing any objection which may
be urged on behalf of any person served with notice under
this sub-rule. The notice required by this sub-rule shall be
served six clear days before the day named in the notice for
the hearing of the application and may be in Form No. 11 set
forth in Appendix H hereto.
(8) Special provision to shorten delay in getting a
guardian appointed.-Where the application is by the plaintiff,
he shall, along with his application and affidavit referred to
in sub-rules (4) and (5) above, produce the necessary forms
in duplicate filled in to the extent that is possible at that stage,
for the issue simultaneous of notices to two at least of the
proposed guardians for the suit to be selected by the Court
from the list referred
to in sub-rule (4) above together with a
duly stamped voucher indicating that the fees prescribed for
service have been paid.
If one or more of the proposed guardians signify his or
their consent to act, the Court shall appoint one of them and
intimate the fact of such appointment to the person appointed
by registered post. If no one of the persons served signifies
his consent to act, the Court shall proceed to serve
simultaneously another selected two, if so many there be, of
the persons named in the list referred to in sub-rule (4) above
but no fresh application under sub-rule (4) shall be deemed
necessary. The applicant shall within three days of intimation
of unwillingness by the first set of proposed guardians, pay
K. P. NATARAJAN & ANR. v. MUTHALAMMAL & ORS.
[V. RAMASUBRAMANIAN, J.]
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the prescribed fee for service and produce the necessary forms
duly filled in.
(9)No personal shall be appointed guardian without
his consent.- No person shall without his consent, be appointed
guardian for the suit. Whenever an application is made
proposing the name of a person as guardian for the suit a
notice in Form No.11 A set forth in Appendix H hereto shall
be served on the proposed guardian, unless the applicant
himself be the proposed guardian or the proposed guardian
consents.
(10) Court guardian.- When to be appointed-How he is
to be placed in funds.- Where the Court finds no person fit
and willing to act as guardian for the suit, the Court may
appoint any of its officers or a pleader of the Court to be the
guardian and may direct that the costs to be incurred by that
officer in the performance of the duties as guardian shall be
borne either by the parties or by any one or more of the parties
to the suit or out of any fund in Court in which the minor is
interested, and may give directions for the repayment or
allowance of the costs as justice and the circumstances of the
case may require.
(11) Funds for a guardian other than Court guardian
to defend.- When a guardian for the suit of a minor defendant
is appointed and it is made to appear to the Court that the
guardian is not in possession of any or sufficient funds for
the conduct of the suit on behalf of the defendant and that
the defendant will be
prejudiced in his defence thereby, the
Court may, from time to time, order the plaintiff to advance
monies to the guardian for purpose of his defence and all
monies so advanced shall form part of the costs of the plaintiff
in the suit. The order shall direct that the guardians, as and
when directed, shall file in Court an account of the monies so
received by him.”
18. There is a great deal of difference between the Rules of
Procedure laid down in Rule 3 of Order XXXII by the Central Act and
Rule 3 as applicable to civil courts subject to the superintendence of
Madras High Court. Order XXXII, Rule 3 in its original form reads as
follows:-
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“3. Guardian for the suit to be appointed by court for minor
defendant.- (1) Where the defendant is a minor, the court, on
being satisfied of the fact of his minority, shall appoint a
proper person to be guardian for the suit for such minor.
(2) An order for the appointment of a guardian for the suit
may be obtained upon application in the name and on behalf
of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit
verifying the fact that the proposed guardian has no interest
in the matters in controversy in the suit adverse to that of the
minor and that he is a fit person to be so appointed.
(4) No order shall be made on any application under this
rule except upon notice to any guardian of the minor
appointed or declared by an authority competent in that
behalf, or, where there is no such guardian, upon notice to
the father, or where there is no father, to the mother, or where
there is no father or mother, to other natural guardian of the
minor, or, where there is no father, mother, or other natural
guardian, to the person in whose care the minor is, and after
hearing any objection which may be urged on behalf of any
person served with notice under this sub-rule.
(4A) The Court may, in any case, if it thinks fit, issue notice
under sub-rule (4) to the minor also.
(5) A person appointed under sub-rule (1) to be guardian for
the suit for a minor shall, unless his appointment is terminated
by retirement, removal or death,
continue as such throughout
all proceedings arising out of the suit including proceedings
in any Appellate or Revisional Court and any proceedings in
the execution of a decree.”
19. A comparison of the two sets of Rules show that the rules
applicable to Courts subject to the superintendence of the Madras High
Court are more elaborate and also rigorous. We may immediately note
(i) that sub-rules (1) and (2) of Rule 3 of the Rules applicable to Courts
subject to the superintendence of the Madras High Court (hereinafter
referred to as “applicable rules” for the purpose of convenience), are
additional requirements; (ii) that sub-rule (3) of Rule 3 of the ‘applicable
rules’ is a reproduction of sub-rule (1) of Rule 3 of the original Code;
K. P. NATARAJAN & ANR. v. MUTHALAMMAL & ORS.
[V. RAMASUBRAMANIAN, J.]
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(iii) that sub-rule (3-A) of Rule 3 of the ‘applicable rules’ is a
reproduction of sub-rule (5) of the Central Act; (iv) sub-rule (7) of Rule
3 of the ‘applicable rules’ is an improved version of sub-rule (4) of
Rule 3 of the Central Act.
20. More importantly sub-rules (4), (5), (6) and a part of sub-rule
(7) of Rule 3 of Order XXXII of the ‘applicable rules’ prescribe certain
additional requirements which are as follows:- (i) when an application
for the appointment of a guardian is by the plaintiff, it shall set forth in
the order of their suitability, a list of persons with their full addresses for
service of notice in Form No.11-A set forth in Appendix H, who are
competent and qualified to act as guardian for the minor defendant; (ii)
the application for appointment of a guardian should be supported by an
affidavit, not merely verifying (as in the Central Act) the fact that the
proposed guardian has no interest in the matters in controversy adverse
to that of the minor, but also stating additional particulars including the
name and address of the de-facto guardian and the names and addresses
of other suitable persons, whenever a natural or de-facto guardian is
not permitted to act.
21. Admittedly, the learned Judge summoned the records from
the trial Court after entertaining a doubt about the procedure followed
by the trial Court in this case and found as a matter of fact that the trial
Court failed to appoint a
guardian for the third defendant as required by
Order XXXII, Rule 3. The power of the learned Judge to call for the
records and examine the same, in a revision under Section 115(1) of the
Code is not and cannot be doubted or questioned by the petitioners. It is
true that the learned Judge was dealing only with a revision petition
arising out of an Order dismissing a petition under Section 5 of the
Limitation Act, 1963. But it does not take away or curtail the jurisdiction
of the High Court to look into the records with particular reference to an
important rule of procedure, especially when the same relates to something
concerning persons under disability. The rigorous nature of the Madras
amendment to Rule 3 of Order XXXII, is perhaps to be attributed to the
wider jurisdiction that the High Court exercised on its original side, under
Clause-17 of the Letters Patent and the parens patriae jurisdiction that
a Court normally exercises while dealing with cases of minors. Therefore,
we find no illegality in the action of the High Court in summoning the
original records in the suit and finding out whether or not a guardian of a
minor defendant was appointed properly in accordance with the
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procedure prescribed in Order XXXII, Rule 3, even in the absence of a
specific contention being raised by the petitioners.
22. The contention that in a revision arising out of the dismissal of
a petition under Section 5 of the Limitation Act, 1963, the High Court
cannot set aside the ex-parte decree itself, by invoking the power under
Article 227, does not appeal to us. It is too well settled that the powers
of the High Court under Article 227 are in addition to and wider than the
powers under Section 115 of the Code. In Surya Dev Rai vs. Ram
Chander Rai and Others2, this Court went as far as to hold that even
certiorari under Article 226 can be issued for correcting gross errors of
jurisdiction of a subordinate Court. But the correctness of the said view
in so far as it related to Article 226, was doubted by another Bench,
which resulted in a reference to a three member Bench. In Radhey
Shyam & Anr. vs. Chhabi Nath & Others3, the three member Bench,
even while overruling Surya Dev Rai (supra)on the question of jurisdiction
under Article 226, pointed out that the jurisdiction under Article 227 is
distinguishable. Therefore, we do not agree with the contention that the
High Court committed an error of jurisdiction in invoking Article 227 and
setting aside the ex-parte decree.
23. In fact the learned Judge also went into the question whether
a decree passed against a minor without proper appointment of a guardian,
is a nullity ipso facto or whether the same
would depend upon prejudice
against the minor being established. The learned Judge found that in this
case, the minor was prejudiced.
24. It may be of interest to note that Rule 3-A was inserted in
Order XXXII by CPC Amendment Act 104 of 1976. It is this Rule that
introduced for the first time into the Code, the question of prejudice to
the minor. But this Rule 3-A applies only to cases where the next friend
or guardian for the suit of the minor had an interest in the subject matter
of the suit adverse to that of the minor. This amendment was a sequel to
certain conflicting opinions on the question as to whether a decree passed
in cases where the minor was represented by a guardian who had an
interest in the subject matter of the suit adverse to that of the minor, was
void or voidable.
2 (2003) 6 SCC 675
3 (2015) 5 SCC 423
K. P. NATARAJAN & ANR. v. MUTHALAMMAL & ORS.
[V. RAMASUBRAMANIAN, J.]
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25. In other words the Parliament chose to introduce the element
of prejudice, specifically in relation to one category of cases under Order
XXXII, Rule 3A. The case on hand does not fall under that category. In
any case, we need not go into that question in this case, as the learned
Judge found that the minor was prejudiced.
26. A valiant attempt was made during the hearing, to show that
the 3rd Respondent/defendant was not a minor at all. Such a contention
was sought to be raised on the basis of the long cause title in the execution
application E.A.No.65 of 2017 where the 3rd Respondent was described
as a person aged about 24 years in the year 2017. Therefore, it was
sought to be contended that he should have attained majority long before
the ex parte decree and that therefore the question of appointment of a
guardian and the decree becoming a nullity did not arise.
27. The said contention is to be stated only to be rejected. It was
the petitioners herein who filed the suit in the year 2013 describing the
3rd defendant as a minor and seeking the appointment of a guardian.
Therefore, there is no place for any innovative arguments contrary to
one’s own pleadings.
28. Another contention was raised that in any event, the decree
could have been set aside only as against the 3rd Respondent and not
against all the others. But the said logic does not apply to something that
is a nullity in law.
29. The reliance placed by
the learned counsel for the petitioners
upon the judgment of a Division Bench of the Madras High Court in
Lanka Sanyasi vs. Lanka Yerran Naidu4 is misplaced. The question
in Lanka Sanyasi (supra) was whether a person who had become a
major on the date on which a compromise decree was passed in a suit,
was entitled to challenge the compromise decree in a subsequent suit.
The subsequent suit was decreed by the First Appellate Court and while
dealing with the Second Appeal, the High Court held in Lanka Sanyasi
that a mere circumstance that a minor defendant had attained majority
during the pendency of the suit, but not elected to continue the defence
himself and to have his guardian ad litem discharged, is not sufficient to
enable him to have the judgment passed in the suit declared as not binding
on him. Nothing turned on the provisions of Order XXXII, Rule 3 in the
said case.
4 1929 Law Weekly 455
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30. The decision of the Travancore Cochin High Court in Ouseph
Joseph vs. Thoma Eathamma5, relied upon by the petitioners, more
than helping the petitioners, confirms that the view taken in the impugned
order is correct.
31. The decision in Divya Dip Singh and others vs. Ram Bachan
Mishra and others6, concerned the question whether the appointment
of a guardian for a minor under Order XXXII, Rule 3 will take away the
right of the natural guardian. The answer was too obvious and the same
has nothing to do with the issue on hand.
32. The decision of the Rajasthan High Court in Anandram and
another vs. Madholal and others7relied upon by the petitioners, dealt
with the question of prejudice to the minor, specially in the context of the
father filing a written statement on behalf of the minors and admitting
receipt of part consideration. In Rangammal vs. Minor Appasami8
there was a finding on fact that the minor’s interests were sufficiently
safeguarded in the suit. Therefore, none of these decisions relied upon
by the petitioners, advance their cause.
33. Therefore, we find no illegality in the order of the High Court
warranting our interference under Article 136. Hence, this Special Leave
Petition is dismissed.
5 AIR 1956 TC 26
6 (1997) 1 SCC 504
7 AIR 1960 Raj 189
8 85 Law Weekly 574
Devika Gujral
Special leave petition dismissed.
K. P. NATARAJAN & ANR. v. MUTHALAMMAL & ORS.
[V. RAMASUBRAMANIAN, J.]