Mr. Raghunathan drew my attention to Order 32, Rule 3 of the Code, which requires the Court to appoint a, proper person to be a guardian for the minor in a suit. Learned counsel pointed out that the mother in this case was not appointed by order of Court. I do not think this circumstance makes for any difference to my conclusion. Although the Court did not appoint the mother as guardian, it cannot be gainsaid that she is minor's legal guardian. It has been held that where the natural or legal guardian represents the minor a suit, the mere absence of a formal Court order appointing him or her as guardian ad litem will not vitiate the decree against the minor. See Rangammal v. Minor Appasami, MANU/TN/0227/1973 : AIR1973Mad12 . Raghavan J. in that case held that the decree passed against a minor in such a case is not a nullity.{PARA 7}
IN THE HIGH COURT OF MADRAS
Civil Revn. Petn. No. 1102 of 1977
Decided On: 18.03.1980
Saradamani Vs. Rajendran
Hon'ble Judges/Coram:
Balasubrahmanyan, J.
Citation:AIR 1981 Madras 217
1. This civil revision Petition raises the question as to whether a decree obtained against a minor defendant ex parte can be regarded as a nullity after the minor comes of age and accuses the guardian ad litem of improperly allowing the suit to be disposed of ex parte.
2. The petitioner in this civil revision petition was a Party to a partition suit. She was impleaded as the 5th defendant. She was a minor at the time, represented in the suit by her mother and guardian who was also impleaded in her own right, as the first defendant. Both these defendants opposed the partition suit. They filed a written statement to that effect. It came to Pass, however that on the day when the suit was Posted for trial. And was called the minor's guardian did not turn up Learned counsel, who had entered appearance both for the minor and her guardian in the suit, then reported no instructions. On this representation the Court set them ex parte and proceeded to pass an ex parte preliminary decree as against them. In due course a final decree in the suit followed. The plaintiff's share in the suit properties was declared as 3/20 under the Preliminary decree Under the final, decree the plaintiff was allotted certain items as and towards his share. These items were in the possession of the 5th defendant for delivery of Possession. By this time the 5th defendant had attained majority and was also duly declared as a major. At that stage she moved an application before the execution court for a declaration that the ex parte decrees passed against her were nullities and hence cannot be executed as against her. Her contention was that she had not been properly represented in the suit during her minority by her mother as guardian ad litem. The executing Court did not accept this contention and dismissed her application.
3. In this civil revision petition brought by the fifth defendant, her learned counsel Mr. K. Raghunathan urges that the action of the guardian in allowing an ex parte decree to be passed against the minor showed that the guardian had not a exercised due diligence in protecting the minor's interests.
4. This submission in the way it is made cannot be accepted. For, all we have in this case is that the two, defendants were not ex parte and the decree for partition was passed ex parte as against them. Beyond this, no, material is put forward to show in what manner the passing of the ex parte decree had prejudiced the interests of the minor fifth defendant. On the contrary, under the ex parte decree the fifth defendant's share also had been duly declared in the suit properties. Prima facie therefore there was no prejudice caused to the minor defendant by her having been set ex parte in the suit.
5. Mr. Raghunathan then advanced the argument that the Court set the minor defendant ex parte own a to the absence of her guardian, it had, at the same time, a duty to appoint a fresh guardian to take the place of the first defendant before it proceeded further with the trial of the suit. The obvious implication in this argument is that where a minor defendant figures in a suit the court a special duty to the minor and must see to it that the minor does not go without representation. I reject the, suggestion as untenable. In my judgment the court does not have to assume additional responsibility towards a defendant merely because he happens to be a minor at the time. On the contrary a just and proper trial procedure demands that the court deals with a minor in the same way as it treats any other party before it. Wherever the court is put under a special responsibility towards a minor litigant, the code of civil procedure has made special provision therefore Order 32 rule 7 is a case in point. This rule declares that an agreement or compromise entered into on behalf of a minor who is a party to a suit, shall be voidable against all parties other than the minor if the compromise is entered into without leave of court. The same rule bars a next friend or guardian entering into a compromise in the suit on behalf of the minor without the leave of the Court. The rule lays down the procedure for detaining leave of court to enter in to compromise on behalf of the minor defendant is set ex parte or a minor's suit is dismissed for default Order 9 Rule 13 of the Code enables the court to set aside an ex parte decree. It also lays down the procedure therefore. This rule is quite general in its application. It applies to all ex parte decrees. No special provision is made for setting aside ex parte decrees against minors.
6. Mr. Raghunathan drew my attention to Order 34 Rule 9 of the Code. Inspired by this provision, he urged that if a guardian ad litem should leave the minor in the lurch, the Court must rush to the minor's succour, suo motu and not only appoint a substitute guardian, but also set aside any order that might have been passed against the minor, all as a matter of course. This argument does not find support in O. 31, Rule 9. No doubt, the rule enables a minor to move the Court to remove the guardian who does not do his duty and get another guardian appointed to represent him in the suit. But even this Procedure involves a relative application being moved before the Court by some one acting for the other. The Code does not contemplate that the Court should itself take the initiative by an inner usage of its own, to 'protect' the minor's interests according to its own lights. I can very well understand why the Code does not cast any such burden of responsibility on the Court. In a suit or other contentious proceeding, the Court's role is not investigation, but adjudication. Facts come to light only at the trial or other inquiry, on basis of evidence let in by parties. The Court cannot assess any factual situation, excepting on the evidence on record. This is by reason, why even a genuine grievance of a minor litigant has to be brought before the Court by overt action of the parties. The Court cannot, and should not enter into the arena even for the sake of protecting the interests of the minor. The position, of course is different where the Court exercises over infants its ward Jurisdiction. But so far as suits go, where a minor is arrayed as one of the Parties, Courts cannot move suo motu to make any order intended to protect the minor's interests.
7. Mr. Raghunathan drew my attention to Order 32, Rule 3 of the Code, which requires the Court to appoint a, proper person to be a guardian for the minor in a suit. Learned counsel pointed out that the mother in this case was not appointed by order of Court. I do not think this circumstance makes for any difference to my conclusion. Although the Court did not appoint the mother as guardian, it cannot be gainsaid that she is minor's legal guardian. It has been held that where the natural or legal guardian represents the minor a suit, the mere absence of a formal Court order appointing him or her as guardian ad litem will not vitiate the decree against the minor. See Rangammal v. Minor Appasami, MANU/TN/0227/1973 : AIR1973Mad12 . Raghavan J. in that case held that the decree passed against a minor in such a case is not a nullity.
All this is not to say that a minor on coming of age cannot avoid a decree passed against him during his minority. He can, provided he establishes that the guardian who represented him in the suit was grossly negligent in the conduct of the suit. But it must also be shown that the resulting decree passed by the Court had caused serious prejudice to the minor by reason of the negligence of the Court. In Bishnudeo Narain v. Snoweni Rai. AIR 1051 SC 20 tile question was Whether partition decree passed an the basis of' a compromise was a nullity, when the guardian had entered into the compromise, without the leave Of the Court Several questions arose in the case before the Supreme Court. The Court pointed out that a compromise decree passed without the leave of the Court was not altogether a nullity but was merely voidable at the option of the minor whose guardian was a party to the compromise . The Court proceeded to hold that in order to avoid a partition decree a minor must show that the division was unfair and unjust to him and where the complaint is against the guardian ad litem the minor must show fraud or negligence on the Part of the guardian.
8. In the Present case all that has been urged is that the deem for partition was passed ex parte as against the minor. That by itself cannot show that the guardian had been grossly negligent or had perpetrated a fraud on the minor. It might well be that the guardian did not consider it in the interest of the minor to put up any resistance to the partition suit with a view to save costs which would have had to be incurred from out of the minor's estate. It has been held that it is no part of the duty of a guardian to raise frivolous defences at the cost and expense of the minor's estate: vide Marudamuthu Khander v. P. S. AEL Arunachalam. Chettiar, MANU/TN/0182/1957 : AIR1957Mad395 . In an earlier decision Daiva Animal v. Salvararnanujam, AIR 19M Mad 479, the same position had been laid down. The question in that case was posed as under -
"Can a guardian who, after defending the suit bona fide and conducting it to the best of his ability, elect to abide by the decision given by the Court without preferring an appeal against it holding it to be correct, and that an appeal would be useless, be said to have acted negligently in not preferring the appeal,"
The answer was formulated thus-
"In the circumstances, we cannot consider the failure to prefer an appeal as negligence on the part of the guardian.
9. In the present case there is no controversy about the respective shares allotted to the plaintiff and the 5th defendant. That being so the mere fact that the guardian had allowed the suit to be determined ex parte cannot be regarded as amounting to grow negligence on the guardian's part. The petitioner cannot, therefore ask for a declaration that the decree itself was a nullity.
10. This revision petition is accordingly dismissed. There will, however, be no order as to costs.
11. Petition dismissed.
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