Patna High Court
Vaidyanath Sahay vs Rambadan Singh And Anr. on 4 March, 1966
Equivalent citations: AIR1966PAT383, AIR 1966 PATNA 383
JUDGMENT Mahapatra, J.
1. This plaintiff's second appeal arises out of a suit for declaration that a decree passed in small cause court suit No. 406/380 of 1940 in the court of the Munsif IV at Chapra on the 6th of September, 1940, and the auction sale of the suit property held in execution of that decree on the 8th January, 1942, in the court of the Munsif 1 at Chapra, were void. He asked for recovery of possession over holding Nos. 170 and 171 (old) corresponding to new holding Nos. 176 and 177. His case was that he was born on the 2nd January, 1930. While he was a minor, his father died in 1938. His mother also died in 1945. The small cause court suit was brought after the death of his father against the plaintiff for recovery of money on the basis of a promissory note allegedly executed by his father in favour of the present defendant 1. No summonses of that suit were served upon the plaintiff or his natural guardian and no notice as contemplated under Order 32, Civil Procedure Code, in connection with the appointment of a guardian for a minor defendant was served either on the plaintiff or his natural guardian, his mother; and the pleader guardian who was appointed for him in that suit did not defend the minor and the result was that an ex parte decree was passed. The notices in the execution case following that ex parte decree were also suppressed; and the suit property was sold to the decree-holder at an inadequate price by the court. He alleged that on the death of his father, he and his mother left the town of Chapra and were living at their village home at Baranpura. He, however, came to know of the ex parte decree and the auction sale on the 25th April, 1948, and filed the present suit on the 19th December, 1950, which was, according to him, within three years of his attaining majority.
2. The suit was contested by the defendants, defendant 2 being a transferee from defendant 1 for a portion of the suit property, alleging that the plaintiff-minor was properly represented in the suit; and there was no suppression of the summonses or notices either in the suit or in the execution case. The bar of limitation was also raised in defence against the plaintiff's suit.
3. The Courts below dismissed the suit on a finding that the suit was barred by limitation, and that all the notices were served upon the plaintiff, and his natural guardian, his mother before a pleader guardian was appointed. The decree passed in the small cause court suit was held to be correct as the debt on which it was based, was existing against the plaintiff.
4. Learned counsel appearing for the plaintiff-appellant challenged the finding about limitation and urged that in the circumstances of the case, which I shall immediately relate, the plaintiff was entitled to the benefits as provided under Section 14 of the Limitation Act. His suit was filed on the 19th December 1950, and was valued at Rs. 388-4-0, which was the price at which the suit property was sold at auction in the execution case. When the office pointed out that ad valorem court-fee was payable on the plaint and the suit was to be valued at the market price of the land, the plaintiff put the valuation at Rs. 1,500 on the 16th January, 1951. As the Munsif in whose court the plaint had been filed, had not the pecuniary jurisdiction beyond Rs. 1,000, the plaint was returned to the plaintiff on the 22nd January, 1951; and it was refiled before the Munsif, fourth Court at Chapra on that very day. The defendants disputed the valuation; and after evidence, the court found that the proper valuation was Rs, 2,680, which the plaintiff had to accept; but, since that valuation was beyond the pecuniary jurisdiction of that Munsif, the plaint was returned on 27th March, 1954, and was refiled on the same day in a proper court which had jurisdiction to entertain the suit of that valuation. Since the suit was to set aside an auction sale by which the property had gone out of the hands of the plaintiff, it (the suit) was originally valued at the auction price. This was under legal advice. A mistake of that nature is not infrequent and cannot be held to be mala fide. In the case of Kamta Pd. Singh v. Ram Narayan Lall, 1956 BLJR 61: (AIR 1957 Pat 139), a suit of similar nature was also valued at the price at which the property had been auctioned in an execution sale, but later on was valued at the market price of the land involved. The original valuation in that case was held to be not mala fide or the result of any gross negligence or want of good faith. Within less than a month of the filing of the suit in the present case, the plaintiff changed the valuation to the market price as he estimated it, when the mistake was pointed out by the court. A litigant depends upon a lawyer for the drafting of a plaint and for tbe advice in regard to valuation and court-fee. In the case of Subhanand Chaudhary v. Biudeshwari Thakur, AIR 1959 Pat 365, tbe valuing of a suit for recovery of a property sold in execution sale at the auction price was also taken not to be an act of negligence or without due care and attention on the part of the plaintiff.
5. The court below has also held that the valuation of the suit property at Rs. 1500 on the 16th January, 1951, was not in good faith. The plaintiff's mother, who had applied for setting aside the sale in the execution case in which the suit property was sold out, had stated that the suit property, which was worth Rs. 1,500, had been auctioned at Rs. 188 only, which was too inadequate. The plaintiff put the valuation of his suit at that figure. It cannot be said, therefore, that it was without any basis. It was only after the challenge by the defendants and on evidence that the court found on the 26th March, 1954, that the proper valuation of the suit property should be Rs. 2,680. In many suits, this kind of inquiry, leads to a valuation different from what is originally given in the plaint; but that does not mean want of good faith or due care and, attention on the part of litigant.
6. The court below relied upon a case decided by the Supreme Court in the case of Madhavrao Narayanrao Patwardhan v. Ram Krishna Goyind Bhanu, AIR 1958 SC 767 in support of its conclusion of lack of good faith against the plaintiff. In that case, the plaints of two suits were drafted by the plaintiff himself, who had put the valuation in one plaint and omitted to put any valuation in the other, Ten years after, when the suit, that had been valued, was lost, the plaintiff himself raised an objection that the court in which the second suit was proceeding had no pecuniary jurisdiction to decide that, because the valuation of the properties involved was more than that. In that context, their Lordships of the Supreme Court held that the period occupied in the prosecution of the unvalued suit in the court whose Jurisdiction was challenged by the plaintiff himself ten years after, could not be cohered by the provisions under Section 14 of the Limitation Act, because the omission to value the suit in the plaint while valuing the same in another suit did not evince due care or attention on the part of the plaintiff. Those facts are completely distinguishable from the facts in the Instant case before us; and, in my view, the court below was wrong in relying upon that decision for holding against the plaintiff in the present suit. Another case relied upon against the plaintiff is Fazlul Jamil v. Helafuddin, AIR 1927 Pat 256. There, a decree, which had been passed by the Subordinate Judge was executed twice in the court of the Subordinate Judge; but at the third time when the execution case was filed, it was in the court of a Munsif. The heading of the decree showed that it had been passed by the Subordinate Judge's court. The filing of the third execution case in the Court of the Munsif was, therefore, held not to be with due care and attention. Here, again, the facts are entirely different from those in the present case.
7. The principle underlying under Section 14 of the Limitation Act is that a person honestly doing his best to have his case tried on merits but failing on account of the court having no jurisdiction to try that suit, should not be affected adversely. In the case of Lal Bihari Lall v. Bani Madhava Khatri. AIR 1949 Pat 293 (KB), their Lordships held that this principle was clearly applicable not only to cases in which a man brings his suit in the wrong court, that is, a court having no jurisdiction to entertain it, but also where he brings the suit in the wrong court in consequence of a bona fide mistake of law or defect of procedure. Given good faith and due diligence, a man should not suffer merely because it was in his own power to avoid the mistake. In that case, the suit was under Order 21, Rule 63, Civil Procedure Code. The plaintiff was allowed the deduction of time spent in his prosecuting in good faith and with due diligence, an abortive civil revision before the High Court against the adverse order passed by the executing court under Order 23, Rule 58, Civil Procedure Code. The circumstances of each case will determine whether the benefits of Section 14 of the Limitation Act can or cannot be invoked by the litigant in his support. On the facts of the present case, the plaintiff cannot be held guilty of lack of due care and attention or good faith, while he filed his suit valuing it at the auction price or when he valued it at Rs. 1,500. In that view, he will be entitled to a deduction of the period from the 19th December, 1950, to the 27th March, 1954, which was occupied in prosecuting the suit in good faith in courts which had no jurisdiction to entertain the suit.
8. Another part of the plea of limitation is that the suit was not instituted within three years of the attainment of majority by the plaintiff as provided in Article 95 of the Limitation Act. The suit was filed on the 19th of December, 1950. According to the plaintiff, he was born on the 2nd of January, 1930, and attained majority in January, 1948. In support of that, apart from the oral evidence, he produced his Matriculation certificate, Exhibit 3, a certificate from the Headmaster of the school where he studied, Exhibit 4, the entry in the admission register of the school, Exhibit 5, entries in the attendance register of the school, Exhibits 6 and 6(a), and his horoscope, Exhibit 10. Admittedly, Exhibits 6 and 6 (a) have little bearing on the age of the plaintiff. The other exhibits corroborate the date of birth as given by him. The Matriculation certificate and the entries in the admission register of the schools are important pieces of evidence, as they came into existence at a time long before the controversy. They are admissible under Section 35 of the Evidence Act: see the cases of Hrishikesh, Banerjee v. Sushil Chandra Moulik, AIR 1957 Cal 211: and Bhim Mandal v. Magaram Gorain, AIR 1961 Pat 21. The appellate court has not considered the Matriculation certificate, although it mentioned about it at one place in the judgment. Exhibits 4 and 5 do not appear to have impressed the court because the transfer certificate from the first school, where the plaintiff studied, on which basis Exhibit 5 was entered in the admission register of second school, was not produced. The teacher from the school who came as a witness, said that it was lost along with other papers from the school of which an information was given to the police. As the correspondence books of the school were not produced to show that such an information was given to the Police, the court did not accept that. It was not suggested that the entries in the admission register of the second school or for that matter, the Headmaster's certificate. Exhibit 4, were not genuine. The transfer certificate, even if produced, could not have carried the matter any further. The admission register of the first school was not available as disclosed in, the evidence. In those circumstances. Exhibits 4 and 5 were very valuable evidence on the data of birth of the plaintiff. Exhibit 3, the Matriculation certificate, was equally so. The appellate court's omission to consider the evidentiary value of Exhibits 3 and 4 is unfortunate and has exposed its conclusion to pertinent attack. There was oral evidence on both sides about the date of birth of the plaintiff; but they could not be, as usual, of a pointed nature to establish the exact date of birth The documentary evidence in such a case assumes great importance; and failure to consider all of them is a serious lacuna in the appellate judgment, If the plaintiff's case that he was born on the 2nd of January, 1930, is accepted, his suit: will be within time. If that is not established, then it will be barred by limitation, although the benefit under Section 14 of the Limitation Act was available to the plaintiff. In that view of the matter, I think it necessary to remand this case to the lower appellate court to reconsider the question of limitation vis-a-vis Article 95 of the Limitation Act on taking into account all the evidence, both oral and documentary, that is on record.
9. On behalf of the appellant it was pressed that the ex parte decree was liable to be set aside for the reason that the plaintiff minor was not properly represented. No notice as contemplated under Rules 3 and 4 of Order 32, Civil Procedure Code, was served on the plaintiff or his natural guardian, his mother. The peon's report and the evidence of the peon show that those notices were sent inside the house, where the plaintiff's mother was living, through a maid servant, who came back and reported to the peon that the mother took the notices but refused to give any receipt therefor. Learned counsel commented that in absence of any evidence from the maid servant in court, there was no legal evidence to support the finding that there was proper service of the notice on the minor and his natural guardian. He relied upon a single Judge decision of this Court in Smt. Snehlata Devi v. Janardan Prasad Singh, AIR 1940 Pat 563. I am afraid the mere non-examination of the maid servant cannot wipe out the effect of the peon's report, which was duly proved in evidence. It would be rarely possible to bring the maid servant in such a case as a witness to court by the other side, particularly after a long period of such service of notice. D. W. 16, who was a witness to the peon's report also deposed in court. Two other witnesses, D. Ws. 5 and 22 spoke about the service of notice in connection with the execution case and attachment of property. There has been some confusion in the judgment of the court below in regard to their evidence; but taking into consideration the peon's report and the evidence of the peon and D. W. 16, I think the finding of the court that there was service of the notices to the minor and his natural guardian, can be upheld. Clause (4) of Rule 4 of Order 32 of the Civil Procedure Code provides for the appointment of an officer of the court as guardian of a minor where the natural guardian is found unfit or unwilling to act for the minor. In the instant case, when the mother did not appear in the money suit for the minor after notice served upon her, the court was right in thinking that an officer of the court should be appointed; and in that view, the appointment of a pleader guardian cannot be assailed.
10. Learned counsel, however, contended that the guardian-ad-litem was grossly negligent because he allowed the suit to be decreed ex parte. It is not enough that a minor should be merely represented by a guardian. It is also necessary that the guardian should represent him effectively. In a case where the interests of the minor are not guarded in a litigation by the court-appointed guardian as a prudent man ought to do, the minor, after attaining majority, can legitimately make a grievance of that to avoid the consequence of the litigation decided against him during his minority. Any kind or negligence will not entitle him to such a course. A minor can avoid a decree on the ground of gross negligence on the part of his guardian even in absence of proof of fraud or collusion. In this case the appellant contended that the fact that an ex parte decree was allowed to be passed against a minor was enough to show that the guardian was grossly negligent. The copy of the ex parte decree or the order sheet in the suit has not been exhibited. We do not know if a written statement was filed on behalf of the minor or not. We also do not know if the pleader guardian appeared in court at the time of hearing of the suit There may be cases where in absence of worthwhile defence a contest would be fruitless. On evidence adduced in this suit the court below has found that there was a debt due from the plaintiff's father to defendant 1: and as such, there was justification' for the decree passed in the previous suit against the plaintiff. But if it appears that the pleader guardian did not enter appearance or did not take any pains to see what defence could be put for the minor, that may amount to gross negligence on his part. We think it necessary to bring on record the ex parte decree and the order-sheet of the suit by way of additional evidence, as a proper conclusion about the alleged gross negligence of the pleader guardian cannot be arrived at without them. In that view, the lower appellate court, to which the case is remanded, will take those two documents into consideration along with other evidence as already available on record to come to a finding on the point.
11. Another point urged for the appellant was that on the death of the plaintiff's father in 1938, half share in the property devolved on the plaintiff's mother under Hindu Women's Right to Property Act. After the mother's death in 1945, the plaintiff succeeded to that. The execution sale was held on the 8th of January, 1942; and the delivery of possession was given through court to defendant 1, the auction-purchaser, on 1st of April, 1942. As his mother was alive at that time and she was not a party to the ex parte decree or the execution case, her half share in the property was not affected by the court's sale. In that view, the plaintiff is entitled to recovery of possession of that. Tin's was not pleaded in the plaint. For the first time, it was raised during argument before the trial court. Both the courts did not entertain that for the reason that the other side was not appraised of it in absence of proper pleading. It is true that a plea not pleaded or not raised in issue can be entertained at a later stage, even sometimes in appeal, provided the party concerned is not prejudiced and provided further, that as materials and facts to supply the basis for such a plea are already on record. Alternative pleas in such circumstances can be entertained, see the case of Mohan Manucha v. Manzoor Ahmad Khan, AIR 1948 PC 26. But in the present case the position seems to be different. Defendant 1 might have raised some answer to this aspect of the case. For example he might have shown that the plaintiff's mother had already parted with or surrendered her interest before the court sale. Since some other facts might have been necessary to consider before the question could be fully determined, I think the Court below was right in not entertaining this plea of the plaintiff.
12. In the result, the judgment and the decree of the Court below are set aside and the case is remanded to the lower appellate court for disposal according to law on fresh consideration of the two questions, whether the plaintiff's suit was barred under Article 95 of the Limitation Act and whether the pleader guardian appointed by the court in the small cause court suit No. 406/380 of 1940 in the court of the Munsif IV at Chapra was grossly negligent in representing (he minor in that suit after taking into evidence the order-sheet and the ex parte decree passed in that suit. The costs will abide the result.
S.N.P. Singh, J.
13. I agree.