Patna High Court
Dulhin Binodini Debi vs Parmeshwar Dayal Singh And Ors. on 20 April, 1925
Equivalent citations: 88IND. CAS.987, AIR 1925 PATNA 512
JUDGMENT B.K. Mullick, J.
1. On the 24th March 1924 Parmeshwar Dayal and others brought a suit against Surendra Bakhsh Rai through his guardian, the manager of the encumbered estates, for a declaration that certain entries in the Settlement Record regarding the jungle and other lands of Mauza Saimria were incorrect. Surendra Bakhsh Rai died shortly afterwards and his widow Dulhin Binodini Debi was substituted in his place on the 7th July 1922. The written statement was filed by the defendant on the 6th December 1922. Issues were framed on the 5th January 1923 and on the 5th February 1923 an application was made to the Subordinate Judge for permission to call for certain papers which had been filed with the record of case No. 32 of 1919 which was then pending in appeal before the Judicial Commissioner of Chota Nagpur. The record and the papers were not produced and finally on the 28th August 1923 the suit was decreed ex parte against the defendant.
2. An application was then made under Order IX, Rule 13 of the C.P.C. for the restoration of the case; but the Subordinate Judge on the 22nd February 1924 found that sufficient cause had not been shown by the appellant and the application was dismissed; hence this appeal before us.
3. It is to be observed that on the 8th April 1924 the estate came out of the Court of Wards and Srimati Binodini Debi thereafter became entitled to conduct the litigation herself.
4. Now the first question is whether there was in fact sufficient cause for the manager's failure on the 28th August 1923. In order to determine this point it is necessary to refer shortly to Suit No. 32 of 1919 which was decided by the Subordinate Judge oh the 18th July 1921. That suit was instituted by Surendra Bakhsh Rai against Brij Behari Saran, Lakhi Koer, Parmeshwar Dayal and others. It was there alleged that certain lands on the boundary between Mauza Simaria and Mauza Donda had been wrongly included within the boundaries of Mauza Donda and the plaintiff claimed a declaration of his title and recovery of possession. He succeeded in the Court of the. Subordinate Judge and also in the Court of the Judicial Commissioner of Ranchi who dismissed the appeal on the 21st May 1923. Therefore at the time when the defendant in the suit, with which the appeal now before us is concerned, made his application for the production of; the documents the record of Suit No. 32 of 1919 was still in the Court of the Judicial Commissioner. It was subsequently sent to the High. Court in consequence of a second appeal having been preferred and on the 28th August 1923 one of the reasons given by the manager for his failure to product the documents was that the record had been sent to the Paper Book Department of the High Court and, therefore, the documents which were required by him were not available. It is quite clear that the manager would have had sufficient time to produce the documents if he had been diligent. In the first place, he should have taken copied of the documents before the record in Suit No. 32 of 1919 left the Court of the Subordinate Judge of Daltonganj. In the second place he had time to take copies in the Court of the Judicial Commissioner and there was no reason except procrastination for his failure to produce them on the 28th August 1923, when his case was taken up by the Subordinate Judge. It is said that a law agent called Parasnath Lal sent a Tahsildar several times to obtain the copies and each time the Tahsildar came back and reported that he was unable to get the copies. The Tahsildar has not been examined and all that can be gathered from Parasnath's evidence is that both he and his superiors seriously neglected the interests of the ward. That was the view of the Subordinate Judge who refused to restore the suit and I think upon the evidence before us it was fully justified.
5. The question then is whether in the circumstance the ward was entitled to any relief. I think the authorities are clear that she was. As early as Kesho Pershad v. Hirday Narain 6 C.L.R. 69, it was held that an application for restoration was maintainable by a minor against whom by reason of the guardian's neglect an ex parte decree had been passed. It was held that such negligence was sufficient cause for his non-appearance. Later the law was fully considered in Lalla Sheo Churn Lal v. Ram Nandan Dobey 22 C. 8 : 11 Ind. Dec. (N.S.) 7. There the question was whether a suit lay and it was held that a minor was competent to sue to set aside a decree in respect of which there had been gross negligence on the part of his guardian. To the same effect is Cursandas Natha v. Ladkavahu 19 B. 571 : 10 Ind. Dec. (N.S.) 381 and Parmeswari Pershad Narayan Singh v. Sheo Datt Rai 6 C.L.J. 448. In Raghubar Dyal Sahu v. Bhikya Lal Misser 12 C. 69 : 6 Ind. Dec. (N.S.) 48, the question was whether a suit lay by reason of the guardian's negligence and the learned Judges, while holding that the practice of the English Courts was to re-open the proceedings in the original suit by motion, were of opinion that in India a separate suit would not lie except on the ground of fraud or collusion. At the same time the learned Judges expressed the view that the minor could avail himself of the procedure for setting aside ex parte decrees or for review. The law, therefore, seems to be settled that acting upon the principles of justice, equity and good conscience, the Courts here will allow a minor to intervene for the purpose of setting aside an ex parte decree provided he can show negligence on the part of Ms guardian in the conduct of the suit.
6. Here it is quite clear that there was negligence. It is contended on behalf of the respondent that there might not have been negligence, and that the manager might have been under the honest belief that he had no case and that for that reason he did not produce either the documentary or oral evidence. The fact, however, that the written statement in this case was not filed till it had been approved by the Legal Remembrancer to the Government and that on the 28th August 1923 the manager made strenuous efforts to get the suit adjourned in order to obtain the necessary evidence, clearly shows that far from thinking that he had no case he was anxious to contest it to the end. Unfortunately he had been dilatory and negligent and the defendant is entitled to have the decree set aside and the case restored for re-trial.
7. The result is that the appeal is decreed with costs and it is directed that the case be restored to the file of the Subordinate Judge and be disposed of according to law.
Ross, J.
8. I agree.