K. P. NATARAJAN & ANR. versus MUTHALAMMAL & ORS.

[2021] 5 S.C.R. 350

[2021] 5 S.C.R.

K. P. NATARAJAN & ANR.

MUTHALAMMAL & ORS.

(Special Leave Petition (C) No. 2492 of 2021)

BJULY 16, 2021

[INDIRA BANERJEE AND V. RAMASUBRAMANIAN, JJ.]

Code of Civil Procedure, 1908: Or.XXXII, r.3 – Suit for specificperformance filed by the petitioner – Respondents-defendants afterhaving entered appearance through counsel, remained ex parte –CIn the plaint, the third defendant was described as minor representedby the next friend (minor’s father) – Petitioners had filed alongwith the plaint, an application under Or. XXXII, r.3 for appointingsecond respondent (minor’s father) as guardian – Petitioner hadalso sought alternate relief, decree for refund of the money paidDwith interest in the event of the Court not granting the relief ofspecific performance – However, trial court passed ex parte decreeholding petitioner entitled to relief of specific performance – Evenin execution proceedings, respondents were set ex parte andexecution petition was allowed – Thereafter, respondents filedapplication for setting aside ex parte order in execution petition –EMeanwhile, petitioners were called upon to deposit non-judicialstamp papers of Rs.1,98,000/- for execution of sale deed – Theydid so and sale deed was executed – It was only thereafter thatrespondents filed application for condonation of the delay of 862days for setting aside the ex-parte decree – This application wasFdismissed by trial court – Aggrieved respondents filed revisionpetition under s.115 of the Code before High Court – Entertaininga doubt about appointment of guardian, High Court summonedoriginal records – Finding that I.A filed along with the plaint forthe appointment of guardian was not properly dealt with and thatthere was no appointment of guardian for minor as required underGOr.XXXII, r.3, High Court invoked the general power ofsuperintendence under Art.227 of the Constitution and set asideex-parte decree itself, without going into the question of delay andwithout examining whether there was sufficient cause forcondonation of delay – In order to ensure that the petitioners/decreeHholders are not poorer after decree (or because of the decree),

High Court put the respondents on condition that they should payof Rs.2,50,000/- as cost to petitioners as the petitioners/decreeholders had already deposited stamp papers and got the sale deedexecuted – Respondents deposited cost of Rs.2,50,000/- – As aconsequence, trial court took up the suit for trial after framingissues – Aggrieved petitioner filed instant special leave petition –Held: No dispute on facts that the respondents were grossly negligentin defending the suit as well as the execution proceedings – However,High Court had found, after summoning the records from trial courtthat as matter of fact, trial Court failed to appoint guardian forthe minor in manner prescribed by law – An application was infact filed by petitioners under Or. XXXII, r.3 – The said applicationwas closed by trial Court – The manner in which the trial Courtdisposed of the application under Or.XXXII, r.3 is improper andcannot at all be sustained – It is true that High Court was dealingonly with revision petition arising out of an order dismissing apetition under s.5 of the Limitation Act, 1963 – But it does not takeaway or curtail the jurisdiction of High Court to look into the recordswith particular reference to an important rule of procedure,especially when the same relates to something concerning personsunder disability – The rigorous nature of the Madras amendment tor.3 of Or.XXXII, is perhaps to be attributed to the wider jurisdictionthat the High Court exercised on its original side, under Clause-17of the Letters Patent and the parens patriae jurisdiction that Courtnormally exercises while dealing with cases of minors – Therefore,there is no illegality in the action of the High Court in summoningthe original records in the suit and finding out whether or not aguardian of minor defendant was appointed properly inaccordance with the procedure prescribed in Or.XXXII, r.3, even inthe absence of specific contention being raised by the petitioners– The contention that in revision arising out of the dismissal of apetition under s.5 of the Limitation Act, 1963, the High Court cannotset aside the ex-parte decree itself, by invoking the power underArt.227 is not acceptable – It is too well settled that the powers ofthe High Court under Art.227 are in addition to and wider than thepowers under s.115 of the Code – High Court did not commit errorof jurisdiction in invoking Art.227 and setting aside the ex-partedecree – In fact High Court also went into the question whether adecree passed against minor without proper appointment of

[2021] 5 S.C.R.

Aguardian, is nullity ipso facto or whether the same would dependupon prejudice against the minor being established – High Courtalso 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 noBescape from the conclusion that the respondents have beengrossly negligent in defending the suit as well as the executionproceedings. But the fact remains that while the parties can affordto remain negligent, the Court cannot. The High Court has found,after summoning the records from the trial Court that as matterCof fact, the trial Court failed to appoint guardian for the thirdrespondent/minor in manner prescribed by law. An applicationwas in fact filed by the petitioners-herein/plaintiffs under OrderXXXII, Rule 3 of the Code in I.A No.981 of 2013. The saidapplication was closed by the trial Court by an Order passed on23.03.2014. The manner in which the trial Court disposed of theDapplication under Order XXXII, Rule 3, is without doubt, improperand cannot at all be sustained, especially in the teeth of the MadrasAmendment. [Para 14][358-D-G]2. Order XXXII, Rule 3, is found in the First Schedule tothe Code. Under Section 121 of the Code, the Rules in the FirstESchedule shall have effect as if enacted in the body of the Codeuntil annulled or altered in accordance with the provisions of Part-X, which comprises of Sections 121 to 131. The High Courts areempowered under Section 122 of the Code to annul/alter or addto all or any of the Rules in the First Schedule, for regulating theFprocedure of the civil courts subject to their superintendence.In exercise of such power, the High Court of Judicature atMadras has made Rule 3 of Order XXXII of the Code, much moreelaborate than how the Rule was originally framed. [Paras 15,16][358-G-H; 359-A-B]

G3. In the impugned order, the Judge has extracted OrderXXXII, Rule 3 of the Code in its original form. But in its applicationto civil courts subject to the superintendence of the Madras HighCourt Order XXXII.There is great deal of difference betweenthe Rules of Procedure laid down in Rule 3 of Order XXXII bythe Central Act and Rule 3 as applicable to civil courts subject toH

the superintendence of Madras High Court. comparison of thetwo sets of Rules show that the rules applicable to Courts subjectto the superintendence of the Madras High Court are moreelaborate and also rigorous. (i) Sub-rules (1) and (2) of Rule 3 ofthe Rules applicable to Courts subject to the superintendence ofthe Madras High Court “applicable rules” are additionalrequirements; (ii) that sub-rule (3) of Rule 3 of the ‘applicablerules’ is reproduction of sub-rule (1) of Rule 3 of the originalCode; (iii) that sub-rule (3-A) of Rule 3 of the ‘applicable rules’ isa 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 part of sub-rule (7) of Rule 3 of Order XXXII of the ‘applicable rules’ prescribecertain additional requirements which are as follows:- (i) when anapplication for the appointment of guardian is by the plaintiff, itshall set forth in the order of their suitability, list of personswith their full addresses for service of notice in Form No.11-Aset forth in Appendix H, who are competent and qualified to actas guardian for the minor defendant; (ii) the application forappointment of guardian should be supported by an affidavit,not merely verifying (as in the Central Act) the fact that theproposed guardian has no interest in the matters in controversyadverse to that of the minor, but also stating additional particularsincluding the name and address of the de-facto guardian and thenames and addresses of other suitable persons, whenever anatural or de-facto guardian is not permitted to act. [Para 20][364-B-D]

5. Admittedly, the Judge summoned the records from thetrial Court after entertaining doubt about the procedure followedby the trial Court in this case and found as matter of fact thatthe trial Court failed to appoint guardian for the third defendantas required by Order XXXII, Rule 3. The power of the Judge tocall for the records and examine the same, in revision underSection 115(1) of the Code is not and cannot be doubted orquestioned by the petitioners. It is true that the Judge was dealingonly with revision petition arising out of an Order dismissing

Apetition under Section 5 of the Limitation Act, 1963. But it doesnot take away or curtail the jurisdiction of the High Court to lookinto the records with particular reference to an important rule ofprocedure, especially when the same relates to somethingconcerning persons under disability. The rigorous nature of theMadras amendment to Rule 3 of Order XXXII, is perhaps to beBattributed to the wider jurisdiction that the High Court exercisedon its original side, under Clause-17 of the Letters Patent andthe parens patriae jurisdiction that Court normally exerciseswhile dealing with cases of minors. Therefore, there is no illegalityin the action of the High Court in summoning the original recordsCin the suit and finding out whether or not guardian of minordefendant was appointed properly in accordance with theprocedure prescribed in Order XXXII, Rule 3, even in theabsence of specific contention being raised by the petitioners.[Para 21][364-D-H; 365-A]

D6. The contention that in revision arising out of thedismissal of petition under Section 5 of the Limitation Act, 1963,the High Court cannot set aside the ex-parte decree itself, byinvoking the power under Article 227 is not acceptable. It is toowell settled that the powers of the High Court under Article 227are in addition to and wider than the powers under Section 115 ofEthe Code. The High Court did not committed error of jurisdictionin invoking Article 227 and setting aside the ex-parte decree. Infact the Judge also went into the question whether decreepassed against minor without proper appointment of guardian,is nullity ipso facto or whether the same would depend uponFprejudice against the minor being established. The Judge foundthat 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 ShyamG& Anr. vs. Chhabi Nath & Others (2015) 5 SCC 423 :[2015] 3 SCR 197 – referred to.

Lanka Sanyasiv.Lanka Yerran Naidu 1929 Law Weekly455; Divya Dip Singh and others v. Ram Bachan Mishraand others (1997) 1 SCC 504 : [1996] 7 Suppl.

SCR 705; Anandram and another v. Madholal andothers AIR 1960 Raj 189; Rangammal v. MinorAppasami 85 Law Weekly 574 – distinguished.

Ouseph Joseph v. Thoma Eathamma AIR 1956 TC 26– held inapplicable.

CIVIL APPELLATE JURISDICTION : Special Leave Petition(C) No. 2492 of 2021.

From the Judgment and Order dated 14.09.2020 of the High Courtof 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. LeelaSarveswar, V. Senthil Kumar, P. Rajaram, Advs. for the Respondents.

The Judgment of the Court was delivered by

V. RAMASUBRAMANIAN, J.

1. In Civil Revision Petition filed under Section 115 of the Codeof Civil Procedure, 1908 (for short “the Code”), challenging an order ofthe trial Court refusing to condone the delay of 862 days in seeking toset aside an ex-parte decree for specific performance, the High Courtfound that the ex-parte decree was nullity, as it was passed against aminor without the minor being represented by guardian duly appointedin terms of the procedure contemplated under Order XXXII, Rule 3 ofthe Code. Therefore, the High Court, exercising its power ofsuperintendence under Article 227 of the Constitution, set aside the ex-parte decree itself on condition that the petitioners before the High Court/defendants pay sum of Rs.2,50,000/-, representing the amount alreadyspent by the decree holders in purchasing stamp paper etc. Aggrievedby the said order of the High Court, the decree holders are before us inthis special leave petition.

2. We have heard Mr. S. Nagamuthu, learned senior Counselappearing for the petitioners/plaintiffs and Mr. R. Balasubramanian,learned senior counsel appearing for the respondents/defendants.

3. In suit O.S. No.264 of 2013 filed by the petitioners-herein forspecific performance of an agreement of sale dated 25.04.2011, therespondents were duly served with summons, but after having enteredappearance through counsel they remained ex-parte. The trial Courtdecreed the suit ex-parte on 08.04.2015.

B4. At this stage it may be relevant to take note of one fact, namely,that the petitioners sought, as an alternate relief, decree for refund ofthe money paid with interest at 18% per annum in the event of the Courtnot granting the relief of specific performance. But the trial Court heldalbeit without reasons, that the petitioners are entitled, for the primaryrelief of specific performance.C

5. In the plaint as it was filed by the petitioners-herein, the thirddefendant was described as “minor S Aravindarajan, aged about 16years, son of Sampathkumar represented by the next friend fatherM. Sampathkumar”. Therefore, the petitioners had filed, along withthe plaint, an application in I.A No.981 of 2013 under Order XXXII,DRule 3 of the Code for appointing the second respondent-herein (hisfather and the second defendant) as the guardian of the minor. As notedby the High Court, the trial Court, after serving notice on the seconddefendant, passed an Order in I.A.No. 981 of 2013 on 23.03.2014 to thefollowing effect:-

E“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.33of 2015. Notices were served on all the respondents in the ExecutionPetition and the Execution Petition is said to have come up for hearingFon two dates in December-2015 and on several dates in the year 2016.Eventually the respondents were set ex-parte in the Execution Petitionon 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. ItGwas numbered only in the year 2017 as E.A. No.40 of 2017.

8. But in the meantime the petitioners were called upon to depositnon-judicial stamp papers of the value of Rs.1,98,000/- for the executionof the sale deed. They did so and sale deed was in fact executed bythe Court on 04.01.2017.

9. It is only thereafter that the respondents filed an application inI.A No.142 of 2017 for condonation of the delay of 862 days in seekingto set aside the ex-parte decree. This application filed on 19.09.2017was dismissed by the trial Court by an order dated 28.11.2017, primarilyon three grounds namely: (i) that there was no proper explanation forthe delay; (ii) that even the written statement was not filed within thetime stipulated in Order VIII, Rule 7; and (iii) and that after allowingeven the execution to proceed ex-parte and after having allowed thesale deed to be executed by the Executing Court, the respondents cannotseek condonation of the huge delay.10. Aggrieved by the dismissal of the petition to condone the delayin seeking to set aside the ex-parte decree, the respondents filed revisionpetition under Section 115 of the Code before the High Court. Entertaininga doubt about the appointment of guardian for the third defendant, thelearned Judge summoned the original records in the suit from the trialCourt. Finding that I.A No.981 of 2013 filed along with the plaint for theappointment of guardian for the third defendant, was not properly dealtwith and that there was no appointment of guardian for the minor asrequired under Order XXXII, Rule 3, the learned Judge invoked thegeneral power of superintendence under Article 227 of the Constitutionand set aside the ex-parte decree itself, without going into the questionof delay and without examining whether there was sufficient cause forcondonation of delay. In order to ensure that the petitioners/decree holdersare not poorer after decree (or because of the decree), the learnedJudge 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 thepetitioners/decree holders had already deposited stamp papers of thevalue of Rs.1,98,000/- and got the sale deed executed.

11. It appears that pursuant to the aforesaid order of the HighCourt, the respondents deposited the cost of Rs.2,50,000/- on 12.10.2020.As consequence, the trial Court appears to have taken up the suit fortrial after framing issues. It is stated by Mr. R. Balasubramanian, learnedsenior counsel for the respondents that the suit now stands posted forexamination of PW-1.

12. The main grounds of attack, to the impugned order of theHigh Court, as articulated by Mr. S. Nagamuthu, learned senior counselfor the petitioners are :- (i) that the High Court ought not to have setaside an ex-parte decree, in revision petition arising out of an application

Aunder Section 5 of the Limitation Act, 1963; (ii) that the Court was noteven entitled to invoke equity in favour of the respondents who weregrossly negligent, first in defending the suit, next in defending theexecuting proceedings and then in seeking to set aside the ex-parte decreeafter nearly year of seeking to set aside the ex-parte order passed inthe Execution Petition; and (iii) that it was not even one of the groundsBraised or points argued by the respondents-herein in their revision petitionbefore the High Court either that the procedure prescribed under OrderXXXII, Rule 3 of the Code was not followed or that grave prejudice orinjustice has been caused to the defendant/minor, on account of the failure,if any, on the part of the trial Court.C

13. Mr. R. Balasubramanian, learned senior counsel appearingfor the respondents contended in response, that the revisional jurisdictionof the High Court under Article 227 are wider in nature and that whenthe High Court finds that the trial Court has not taken care of the interestof the minor who was party to the proceeding, by following theDprocedure prescribed by law, the High Court cannot shut its eyes on thebasis of technicalities.

14. We have carefully considered the rival contentions. There isno dispute on facts and there is no escape from the conclusion that therespondents have been grossly negligent in defending the suit as well asEthe execution proceedings. But the fact remains that while the partiescan afford to remain negligent, the Court cannot. The High Court hasfound, after summoning the records from the trial Court that as matterof fact, the trial Court failed to appoint guardian for the third respondent/minor in manner prescribed by law. As pointed out earlier, an applicationwas in fact filed by the petitioners-herein/plaintiffs under Order XXXII,FRule 3 of the Code in I.A No.981 of 2013. The said application wasclosed by the trial Court by an Order passed on 23.03.2014, which wehave extracted elsewhere. The manner in which the trial Court disposedof the application under Order XXXII, Rule 3, is without doubt, improperand cannot at all be sustained, especially in the teeth of the MadrasGAmendment.

15. Order XXXII, Rule 3, is found in the First Schedule to theCode. Under Section 121 of the Code, the Rules in the First Scheduleshall have effect as if enacted in the body of the Code until annulled oraltered in accordance with the provisions of Part-X, which comprises ofHSections 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 FirstSchedule, for regulating the procedure of the civil courts subject to theirsuperintendence.

16. In exercise of such power, the High Court of Judicature atMadras has made Rule 3 of Order XXXII of the Code, much moreelaborate than how the Rule was originally framed.

17. In the impugned order, the learned Judge has extracted OrderXXXII, Rule 3 of the Code in its original form. But in its application tocivil courts subject to the superintendence of the Madras High CourtOrder XXXII, Rule 3[1] actually reads as follows:-

‘“3. Qualifications to be next friend or guardian. –(1) Any person who is of sound mind and has attained majoritymay act as next friend of minor or as his guardian for thesuit:

Provided that the interest of that person is not adverseto that of the minor and that he is not in the case of nextfriend, defendant, or in the case of guardian for the suit, aplaintiff.

(2) Appointed or declared guardians to be preferredand to be superseded only for reasons recorded. – Where aminor has guardian appointed or declared by competentauthority no person other than the guardian shall act as thenext friend of the minor or be appointed his guardian for thesuit unless the Court considers, for reasons to be recorded,that it is for the minor’s welfare that another person bepermitted to act or be appointed, as the case may be.

(3) Guardians to be appointed by Court.- Where thedefendant is minor, the Court, on being satisfied of the factof his minority, shall appoint proper person to be guardianfor the suit for the minor.

(3A) person appointed under sub-rule (3) to be

guardian for the suit for minor shall unless his appointment

1 The amendment was made by Notification in P. Dis. No.256 of 1938 Vide St. GeorgeGazette, dated 13-3-1938. Unfortunately most of the Bare Acts published in recent timesand even the 19[th ]Edition of Mulla on the Code of Civil Procedure does not make amention of the Notification number and date in so far as the Madras Amendment isconcerned.

is terminated by retirement, removal or death continue as suchthroughout all proceedings arising out of the suit includingproceedings in any appellate or revisional Court and anyproceeding in execution of decree.

(4)Appointment to be on application and wherenecessary after notice to proposed guardian.- An order forthe appointment of guardian for the suit may be obtainedupon application in the name and on behalf of the minor orby the Plaintiff. The application, where it is by the plaintiff,shall set forth, in the order of their suitability, list of persons(with their full addresses for service of notice in Form No.11A set forth in Appendix H. Hereto) who are competent andqualified to act as guardian for the suit for the minordefendant. The Court may, for reasons to be recorded in anyparticular case, exempt the applicant from furnishing the listreferred to above.

(5)Contents of affidavit in support of the applicationfor appointment of guardian.- The application referred to inthe above sub-rule whether made by the plaintiff or on behalfof the minor defendant shall be supported by an affidavitverifying the fact that the proposed guardian has not or thatno one of the proposed guardians has any interest in thematters in controversy in the suit adverse to that of the minorand that the proposed guardian or guardians are fit personsto be so appointed. The affidavit shall further state accordingto the circumstances of each case (a) particulars of anyexisting guardian appointed or declared by competentauthority, (b) the name and address of the person, if any,who is the de facto guardian of the minor, (c) the names andaddresses of persons, if any, who in the event of either thenatural or the de facto guardian or the guardian appointedor declared by competent authority, not being permitted toact, are by reason of relationship or interest or otherwise,suitable persons to act as guardians for the minor for thesuit.

(6)Application for appointment of guardian to beseparate from application for bringing on record the legalrepresentatives of deceased party. – An Application for the

appointment of guardian for the suit of minor shall not becombined with an application for bringing on record the legalrepresentatives of deceased plaintiff or defendant. Theapplications shall be by separate petitions.

(7) Notice of application to be given to personsinterested in the minor defendant other than the proposedguardian.– No order shall be made on any application undersub-rule (4) above except upon notice to any guardian of theminor appointed or declared by an authority competent inthat behalf or where there is no guardian, upon notice to thefather or other natural guardian of the minor, or where thereis no father or other natural guardian, to the person in whosecare the minor is, and after hearing any objection which maybe urged on behalf of any person served with notice underthis sub-rule. The notice required by this sub-rule shall beserved six clear days before the day named in the notice forthe hearing of the application and may be in Form No. 11 setforth in Appendix hereto.(8) Special provision to shorten delay in getting aguardian appointed.-Where the application is by the plaintiff,he shall, along with his application and affidavit referred toin sub-rules (4) and (5) above, produce the necessary formsin duplicate filled in to the extent that is possible at that stage,for the issue simultaneous of notices to two at least of theproposed guardians for the suit to be selected by the Courtfrom the list referred to in sub-rule (4) above together with aduly stamped voucher indicating that the fees prescribed forservice have been paid.

If one or more of the proposed guardians signify his ortheir consent to act, the Court shall appoint one of them andintimate the fact of such appointment to the person appointedby registered post. If no one of the persons served signifieshis consent to act, the Court shall proceed to servesimultaneously another selected two, if so many there be, ofthe persons named in the list referred to in sub-rule (4) abovebut no fresh application under sub-rule (4) shall be deemednecessary. The applicant shall within three days of intimationof unwillingness by the first set of proposed guardians, pay

ABC

DEF

the prescribed fee for service and produce the necessary formsduly filled in.

(9)No personal shall be appointed guardian withouthis consent.- No person shall without his consent, be appointedguardian for the suit. Whenever an application is madeproposing the name of person as guardian for the suit anotice in Form No.11 set forth in Appendix hereto shallbe served on the proposed guardian, unless the applicanthimself be the proposed guardian or the proposed guardianconsents.

(10) Court guardian.- When to be appointed-How he isto be placed in funds.- Where the Court finds no person fitand willing to act as guardian for the suit, the Court mayappoint any of its officers or pleader of the Court to be theguardian and may direct that the costs to be incurred by thatofficer in the performance of the duties as guardian shall beborne either by the parties or by any one or more of the partiesto the suit or out of any fund in Court in which the minor isinterested, and may give directions for the repayment orallowance of the costs as justice and the circumstances of thecase may require.

(11) Funds for guardian other than Court guardianto defend.- When guardian for the suit of minor defendantis appointed and it is made to appear to the Court that theguardian is not in possession of any or sufficient funds forthe conduct of the suit on behalf of the defendant and thatFthe defendant will be prejudiced in his defence thereby, theCourt may, from time to time, order the plaintiff to advancemonies to the guardian for purpose of his defence and allmonies so advanced shall form part of the costs of the plaintiffin the suit. The order shall direct that the guardians, as andwhen directed, shall file in Court an account of the monies soGreceived by him.”

18. There is great deal of difference between the Rules ofProcedure laid down in Rule 3 of Order XXXII by the Central Act andRule 3 as applicable to civil courts subject to the superintendence ofMadras High Court. Order XXXII, Rule 3 in its original form reads asHfollows:-

“3. Guardian for the suit to be appointed by court for minordefendant.- (1) Where the defendant is minor, the court, onbeing satisfied of the fact of his minority, shall appoint aproper person to be guardian for the suit for such minor.

(2) An order for the appointment of guardian for the suitmay be obtained upon application in the name and on behalfof the minor or by the plaintiff.

(3) Such application shall be supported by an affidavitverifying the fact that the proposed guardian has no interestin the matters in controversy in the suit adverse to that of theminor and that he is fit person to be so appointed.

(4) No order shall be made on any application under thisrule except upon notice to any guardian of the minorappointed or declared by an authority competent in thatbehalf, or, where there is no such guardian, upon notice tothe father, or where there is no father, to the mother, or wherethere is no father or mother, to other natural guardian of theminor, or, where there is no father, mother, or other naturalguardian, to the person in whose care the minor is, and afterhearing any objection which may be urged on behalf of anyperson served with notice under this sub-rule.

(4A) The Court may, in any case, if it thinks fit, issue noticeunder sub-rule (4) to the minor also.

(5) person appointed under sub-rule (1) to be guardian forthe suit for minor shall, unless his appointment is terminatedby retirement, removal or death, continue as such throughoutall proceedings arising out of the suit including proceedingsin any Appellate or Revisional Court and any proceedings inthe execution of decree.”

19. comparison of the two sets of Rules show that the rulesapplicable to Courts subject to the superintendence of the Madras HighCourt 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 Courtssubject to the superintendence of the Madras High Court (hereinafterreferred to as “applicable rules” for the purpose of convenience), areadditional requirements; (ii) that sub-rule (3) of Rule 3 of the ‘applicablerules’ is reproduction of sub-rule (1) of Rule 3 of the original Code;

A(iii) that sub-rule (3-A) of Rule 3 of the ‘applicable rules’ is areproduction of sub-rule (5) of the Central Act; (iv) sub-rule (7) of Rule3 of the ‘applicable rules’ is an improved version of sub-rule (4) ofRule 3 of the Central Act.

20. More importantly sub-rules (4), (5), (6) and part of sub-ruleB(7) of Rule 3 of Order XXXII of the ‘applicable rules’ prescribe certainadditional requirements which are as follows:- (i) when an applicationfor the appointment of guardian is by the plaintiff, it shall set forth inthe order of their suitability, list of persons with their full addresses forservice of notice in Form No.11-A set forth in Appendix H, who arecompetent and qualified to act as guardian for the minor defendant; (ii)Cthe application for appointment of guardian should be supported by anaffidavit, not merely verifying (as in the Central Act) the fact that theproposed guardian has no interest in the matters in controversy adverseto that of the minor, but also stating additional particulars including thename and address of the de-facto guardian and the names and addressesDof other suitable persons, whenever natural or de-facto guardian isnot permitted to act.21. Admittedly, the learned Judge summoned the records fromthe trial Court after entertaining doubt about the procedure followedby the trial Court in this case and found as matter of fact that the trialECourt failed to appoint guardian for the third defendant as required byOrder XXXII, Rule 3. The power of the learned Judge to call for therecords and examine the same, in revision under Section 115(1) of theCode is not and cannot be doubted or questioned by the petitioners. It istrue that the learned Judge was dealing only with revision petitionarising out of an Order dismissing petition under Section 5 of theFLimitation Act, 1963. But it does not take away or curtail the jurisdictionof the High Court to look into the records with particular reference to animportant rule of procedure, especially when the same relates to somethingconcerning persons under disability. The rigorous nature of the Madrasamendment to Rule 3 of Order XXXII, is perhaps to be attributed to theGwider jurisdiction that the High Court exercised on its original side, underClause-17 of the Letters Patent and the parens patriae jurisdiction thata Court normally exercises while dealing with cases of minors. Therefore,we find no illegality in the action of the High Court in summoning theoriginal records in the suit and finding out whether or not guardian of aminor defendant was appointed properly in accordance with theH

procedure prescribed in Order XXXII, Rule 3, even in the absence of aspecific contention being raised by the petitioners.

22. The contention that in revision arising out of the dismissal ofa petition under Section 5 of the Limitation Act, 1963, the High Courtcannot set aside the ex-parte decree itself, by invoking the power underArticle 227, does not appeal to us. It is too well settled that the powersof the High Court under Article 227 are in addition to and wider than thepowers under Section 115 of the Code. In Surya Dev Rai vs. RamChander Rai and Others[2], this Court went as far as to hold that evencertiorari under Article 226 can be issued for correcting gross errors ofjurisdiction of subordinate Court. But the correctness of the said viewin so far as it related to Article 226, was doubted by another Bench,which resulted in reference to three member Bench. In RadheyShyam & Anr. vs. Chhabi Nath & Others[3], the three member Bench,even while overruling Surya Dev Rai (supra)on the question of jurisdictionunder Article 226, pointed out that the jurisdiction under Article 227 isdistinguishable. Therefore, we do not agree with the contention that theHigh Court committed an error of jurisdiction in invoking Article 227 andsetting aside the ex-parte decree.

23. In fact the learned Judge also went into the question whethera decree passed against minor without proper appointment of guardian,is nullity ipso facto or whether the same would depend upon prejudiceagainst the minor being established. The learned Judge found that in thiscase, the minor was prejudiced.

24. It may be of interest to note that Rule 3-A was inserted inOrder XXXII by CPC Amendment Act 104 of 1976. It is this Rule thatintroduced for the first time into the Code, the question of prejudice tothe minor. But this Rule 3-A applies only to cases where the next friendor guardian for the suit of the minor had an interest in the subject matterof the suit adverse to that of the minor. This amendment was sequel tocertain conflicting opinions on the question as to whether decree passedin cases where the minor was represented by guardian who had aninterest in the subject matter of the suit adverse to that of the minor, wasvoid or voidable.

2 (2003) 6 SCC 675

3 (2015) 5 SCC 423

A25. In other words the Parliament chose to introduce the elementof prejudice, specifically in relation to one category of cases under OrderXXXII, Rule 3A. The case on hand does not fall under that category. Inany case, we need not go into that question in this case, as the learnedJudge found that the minor was prejudiced.B26. valiant attempt was made during the hearing, to show that

B26. valiant attempt was made during the hearing, to show thatthe 3[rd] Respondent/defendant was not minor at all. Such contentionwas sought to be raised on the basis of the long cause title in the executionapplication E.A.No.65 of 2017 where the 3[rd] Respondent was describedas person aged about 24 years in the year 2017. Therefore, it wassought to be contended that he should have attained majority long beforeCthe ex parte decree and that therefore the question of appointment of aguardian and the decree becoming nullity did not arise.

27. The said contention is to be stated only to be rejected. It wasthe petitioners herein who filed the suit in the year 2013 describing the3[rd] defendant as minor and seeking the appointment of guardian.DTherefore, there is no place for any innovative arguments contrary toone’s own pleadings.

28. Another contention was raised that in any event, the decreecould have been set aside only as against the 3[rd] Respondent and notagainst all the others. But the said logic does not apply to something thatEis nullity in law.

29. The reliance placed by the learned counsel for the petitionersupon the judgment of Division Bench of the Madras High Court inLanka Sanyasi vs. Lanka Yerran Naidu[4 ]is misplaced. The questionin Lanka Sanyasi (supra) was whether person who had become aFmajor on the date on which compromise decree was passed in suit,was entitled to challenge the compromise decree in subsequent suit.The subsequent suit was decreed by the First Appellate Court and whiledealing with the Second Appeal, the High Court held in Lanka Sanyasithat mere circumstance that minor defendant had attained majorityGduring the pendency of the suit, but not elected to continue the defencehimself and to have his guardian ad litem discharged, is not sufficient toenable him to have the judgment passed in the suit declared as not bindingon him. Nothing turned on the provisions of Order XXXII, Rule 3 in thesaid case.

30. The decision of the Travancore Cochin High Court in OusephJoseph vs. Thoma Eathamma[5], relied upon by the petitioners, morethan helping the petitioners, confirms that the view taken in the impugnedorder is correct.

31. The decision in Divya Dip Singh and others vs. Ram BachanMishra and others[6], concerned the question whether the appointmentof guardian for minor under Order XXXII, Rule 3 will take away theright of the natural guardian. The answer was too obvious and the samehas nothing to do with the issue on hand.

32. The decision of the Rajasthan High Court in Anandram andanother vs. Madholal and others[7]relied upon by the petitioners, dealtwith the question of prejudice to the minor, specially in the context of thefather filing written statement on behalf of the minors and admittingreceipt of part consideration. In Rangammal vs. Minor Appasami[8]there was finding on fact that the minor’s interests were sufficientlysafeguarded in the suit. Therefore, none of these decisions relied uponby the petitioners, advance their cause.

33. Therefore, we find no illegality in the order of the High Courtwarranting our interference under Article 136. Hence, this Special LeavePetition is dismissed.

Devika Gujral

Special leave petition dismissed.

5 AIR 1956 TC 26

6 (1997) 1 SCC 504

7 AIR 1960 Raj 189

8 85 Law Weekly 574