Rajasthan High Court - Jaipur
Malkiyat Singh And Anr. vs Om Prakash And Ors. on 9 September, 1994
Equivalent citations: AIR1995RAJ38, 1995(1)WLC191
Author: R.R. Yadav
Bench: R.R. Yadav
ORDER R.R. Yadav, J.
1. The instant revision is directed against the order dated 27-7-1994 passed by learned Civil Judge-cum-Additional Chief Judicial Magistrate, Sangaria District Sri Ganganagar in Civil Suit No. 84 of 1993, whereby, the learned Court issued notices under Order 32, C.P.C. to the defendant-petitioners on 31-3-1994 calling upon the defendant-petitioners to attend the court and to do 'Pairvi' of the case on their behalf as they have attained majority during the pendency of litigation instead of 'pairvi' being done by their natural guardian Shri Hakam Singh who happened to be their father. The learned court-below vide its notice dated 31-3-1994 called upon the defendant-petitioners to put in their appearance on 28-4-1994.
2. In pursuance of the aforesaid notice issued by the learned Civil Judge-cum-Additional Chief Judicial Magistrate, both the defendant-petitioners appeared in court and moved an application on 18-5-1994 seeking the leave of the court to file written statement. In the said application, they have stated that they want to putforth with their claim at their own descretion. They also alleged in their application that they are not able to contest their suit in correct perspective unless they are allowed to file fresh writtten statement. A copy of the said application was served to the palintiffs who filed a detailed objection reiterating therein that a proper 'pairvi' was always done on their behalf by Shri Hakam Singh, who was a co-defendant along with them and was also their natural guardian being their father. It is also alleged in the counter objection by the plaintiff-non-petitioners No. 1 and 2 that the present application has been moved by the defendant-petitioners in collusion of their natural guardian in order to delay earlier disposal of the suit. It is also stated in the counter that the defendant-petitioners cannot be allowed to counter-blast the defence taken by their father Hakam Singh. According to plaintiff-non-petitioners No. 1 and 2, the defendant-petitioners were not entitled to file fresh written statement as contemplated under Order 32, C.P.C.
3. After hearing the learned counsel for the defendant-petitioners as well as the plaintiff-non-petitioners No. 1 and 2, learned Civil Judge rejected the aforementioned application for filing fresh written statement on behalf of the defendant-petitioners. Learned Civil Judge in support of his conclusion placed reliance on a decision rendered by the Patna High Court in the case of Ram Khelawan Singh v. Ganga Prasad (AIR 1937 Pat 625). The learned Civil Judge has taken a view that in view of the provisions of Order 8, Rule 9 and Order 6, Rule 7, C.P.C. in the case of minors, where a guardian ad litem representing the minor-defendants files a written statement and the minors attain majority during the pendency of the suit, they cannot be allowed to file a fresh written statement so as to supersede the written statement filed by their guardian ad litem.
4. I have heard Mr. Bhagwati Prasad, learned counsel for the defendant-petitioners and Mr. Hanuwant Mal Lodha learned counsel for the plaintiff-non-petitioners at length and carefully gone through the impugned order passed by the learned court below.
5. Mr. Bhagwati Prasad, learned counsel for the defendant-petitioners urged before me that after attaining majority during the pendency of a suit as the plaintiff has a right of election under Order 32, Rule 12, C.P.C. similarly, although there are no specific provisions for right of election for the defendants, yet on the same analogy, the right of election to continue with the proceedings or to choose their stand, should also be allowed to the defendants as well.
6. A close scrutiny of Order 32, Rule 12, CPC leads towards an irresitable conclusion that under Order 32, Rule 12, C.P.C., there is a complete procedure given for minor plaintiff on whose behalf a suit is pending, on attaining majority, to elect whether he chooses to proceed with the suit or application or he elects to abandon the suit or application. Where he elects to abondon the suit or application, he shall, if a sole plaintiff or a sole applicant apply for an order to dismiss the suit or application, on payment of costs incurred by the defendant or opposite party or which may have been paid by his next friend. Similarly, under Order 32, Rule 13, C.P.C. a detailed procedure is given where a minor co-plaintiff after attaining majority during pendency of the suit desires to repudiate the suit. The aforesaid Order 32, C.P.C. is silent about a minor defendant who attains majority during pendency of the suit. As a matter of fact, there is no provision whatsoever under the Civil P.C. to meet such a contingency where a defendant attains majority during pendency of the suit.
7. Mr. H.M. Lodha, learned counsel for the plaintiff-respondents refuted the aforesaid argument and according to him, to meet such a contengency, the courts of law are required to take aid of Order 8, Rule 9, C.P.C. according to which, no pleading subsequent to the written statement of a defendant other than by way of defence to a set off or counter claim shall be presented except by the leave of the court and upon such terms as the court thinks fit, but the court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.
8. Learned counsel for the respondents in support of the aforesaid contentions, apart from the decision of Ram Khelwan Singh's (AIR 1937 Pat 625) (supra) also placed reliance before me on a decision rendered by the Madras High Court in the case of Venkataswamy Naidu v. Uppilipalayam Vamana Vilasa Nadhar Ltd. (AIR 1935 Mad 117).
9. I have given my thoughtful consideration to the rival contentions raised before me at the Bar and also examined the aforesaid two decisions of Madras High Court (AIR 1935 Mad 117) as well as of Patna High Court (AIR 1937 Pat 625). In my humble opinion, at the time of deciding the aforesaid two cases, the attention of learned Judges was not invited towards the provisions as contemplated under Section 151, C.P.C. In my considered opinion; where there is no provision in the Civil P.C. the courts of law have been conferred with residuary powers under Section 151, C.P.C. according to which, nothing in the Civil P.C. shall be deemed to limit or otherwise effect the inherent power to the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. In my considered opinion, Order 8, Rule 9, C.P.C. occupies a different field and it cannot be pressed into service in a situation where a defendant attains majority during pendency of the suit and elect to file a fresh written statement. As a matter of fact, under Order 8, Rule 9, C.P.C. filing of subsequent written statement of a defendant is prohibited for those who were not impleaded as party in the array of defendant as minor-defendant but as a major-defendant. In the case of the defendant, who is arrayed as minor-defendant and is represented by his natural guardian or his next friends, is not covered under Order 8, Rule 9, C.P.C. In such a situation, the courts of law have no alternate except to invoke the mandatory provisions contemplated under Section 151, C.P.C.
10. While invoking the residuary power conferred upon the courts of law under Section 151, C.P.C., the Court is to see that for a minor when written statement is already filed by his or her guardian ad litem on attaining majority, he or she can file a fresh written statement on showing "improper contest" or that minor's interest was not sufficiently protected and not otherwise. The defendant having attained majority, has no absolute right to file a fresh written statement superseding one filed earlier during his minority by his natural guardian or guardian ad litem or next friend as a matter of course.
He or she can do so only on obtaining leave of the court but such defendant can amend the pleadings even drastically because the moment he attains majority he takes all the responsibilities for his action.
11. It would not be proper for the courts of law to allow or not to allow a defendant who attains majority during the pendency of litigation to file a fresh written statement in place of the written statement already filed by his or her guardian arbitrarily. As a matter of fact, if following conditions are fulfilled by the defendant attaining majority during pendency of the litigation, the courts will ordinarily permit him or her to file a fresh written statement but if the courts do not find any of the grounds mentioned hereinbelow and application for filing a fresh written statement is found to be mala fide with ulterior motive then such defendant should not be allowed to file fresh written statement in place of written statement already filed by their guardians :--
(a) If courts of law are satisfied that the case on behalf of minor-defendant was not properly contested by their natural guardian ad litem or by next friend.
(b) The interest of the guardian or guardian ad litem is found to be adverse to the interest of minor-defendant who attained majority during pendency of the litigation.
(c) Where a serious prejudice is caused to the interest of the minor-defendant during pendency of the litigation due to mis-conduct or gross negligence of his natural guardian or guardian ad litem.
(d) The application for leave of the Court to file a fresh written statement in place of earlier written statement filed by his or her natural guardian or guardian ad litem is bona fide and has not been moved with ulterior motive.
12. I would like to add as abundant caution that the aforesaid grounds are only illustrative and not exhaustive. In proper cases, if there are other compelling reasons brought to the notice of the court being courts of law and justice may allow the minor-defendant to file a fresh written statement after attaining majority to secure the ends of justice; and also to prevent abuse of the process of the court. In fact all the situations cannot be formulated in the strait-jacket formula but it would be proper to keep open the discretion of the courts of law to allow the minor-defendant to file a fresh written statement on analogous grounds as stated above.
13. Mr. H. M. Lodha, learned counsel for the respondents submitted that applying the aforesaid tests, the present defendant-petitioners who attained majority during pendency of the litigation are not entitled to get the relief from this Court. Thus, according to him, the instant revision is liable to be dismissed on this ground alone. In my humble opinion, there was no proper guide-line when minor-defendant-petitioners before the Court below attained majority during pendency of the litigation and the law on this point was not settled, therefore, the litigants of this State including the present defendant-petitioners were not knowing where they stand. In view of the peculiar facts and circumstances of the case, I think it proper to set aside the order passed by the learned Civil Judge-cum-Additional Chief Judicial Magistrate, Sangaria and direct him to decide the question of filing or not filing the fresh written statement by the defendant-petitioners, who attained majority during pendency of the litigation after giving them full opportunity to file fresh application giving grounds as to how they are entitled to file fresh written statement while their natural guardian had already filed the written statement. The plaintiff-non-petitioners Nos. 1 and 2 should also be given full opportunity to oppose the application so filed by the defendant-petitioners. Learned trial court is directed to decide the controversy between the parties treating it to be within the ambit of Section 151, C.P.C. It is well to remember that wherever the Civil P. C. is silent, then, every courts of law are entitled to exercise residuary power under Section 151, C.P.C.
14. As a result of the aforementioned discussion, the instant revision petition is allowed and the impugned order dt. 4-2-1994 passed by the learned Civil Judge-cum-Additional Chief Judicial Magistrate, Sangaria is set aside. The case is remanded back to the Subordinate Court with a direction to invite fresh application for leave of the court for filing the fresh written statement in place of written statement filed by their natural guardian of the defendant-petitioners and after giving an opportunity to the plaintiff-non-petitioners Nos. 1 and 2 to file a fresh objection to such application and decide the same on merit in the light of the observations made above.