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Showing contexts for: order 32 rule 3a in Prema Maxi vs Tresa Xavier on 28 February, 2022Matching Fragments
2. The point of law arises in the context of Order 32 Rule 3 and Rule 3A of the Code of Civil Procedure, 1908 (CPC).
3. Brief facts are; one Thomman held properties in and around Ernakulam. He died intestate. Xavier and Antony were his sons. Mary was his only daughter. Xavier died on 12/1/1979. Xavier's wife Tresa Xavier filed O.S. No.112/84 for partition of the property that belonged to Thomman. Tresa claimed that her deceased husband Xavier inherited half share and another half share to his brother Antony. Overruling the claim of Tresa, a preliminary decree was passed allotting 1/3rd share to each child of the deceased Thomman. Tresa claimed that before the preliminary decree was passed, Antony, her husband's R.P. Nos. 392/2016 & 667/2016 in brother executed Ext.A10 Will on 3/4/1986. Antony died on 16/8/1994.
10. The learned Counsel submits that, in light of Order 32 Rule 3 and Rule 3A, the decree has to be treated as nullity. It is further argued that when no contest has been raised on behalf of the minor, that itself would show that prejudice has been caused to the interest of the minor and therefore, there is no difficulty in setting aside such decree.
11. Heard the learned counsel, Smt.Prabha R. Menon appearing for the contesting party, i.e. respondents 7, 9 and
16. The learned counsel submits that pursuant to the R.P. Nos. 392/2016 & 667/2016 in preliminary decree, final decree was passed on 11/7/2008 and delivery of possession was taken on 23/3/2011. It is further submitted that the review petitioner was aware of the proceedings related to probate and dismissal of the suit much before the disposal of the appeal by this Court on 1/9/2014. It is also submitted that the Special Leave Petition filed before the Apex Court challenging the judgment and decree was also dismissed on 5/10/2015. The learned counsel relied on the following judgments:
(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross R.P. Nos. 392/2016 & 667/2016 in negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor.
14. The Court, as seen from the mandate of Rule 3, is bound to appoint a guardian for the minor. The Court's role in appointing the guardian of the minor is to ensure that the interest of the minor is protected. The Court also has to make sure that the proposed guardian would not act against the interest of the minor in regard to matters in controversy. There cannot be any doubt that if there was no appointment of a guardian by the Court for the minor, the proceedings would be rendered as a nullity qua minor. See the judgment of K.P. Natarajan's case (supra), Kameshwari Devi's case (supra), Nagaiah's case (supra). The statutory provisions under Order 32 Rule 3A provides a safeguard against setting aside the decree unless it is shown that prejudice has been caused to the interest of the minor. Merely because the minor has not been represented, a decree cannot be set aside except in circumstances where prejudice has been R.P. Nos. 392/2016 & 667/2016 in resulted consequent upon non representation of the minor by the guardian appointed by the Court.
20. The substantial representation of minor's interest is still open for challenge, in view of Rule 3A of Order 32 CPC if the minor is able to demonstrate negligence of the party who litigated the issue encompassing the minor's interest. This ground is available to a minor even if the minor has been represented by a guardian who was formally appointed by an order of the Court. The 'prejudice' referred under Rule 3A of Order 32 CPC also may result R.P. Nos. 392/2016 & 667/2016 in from negligence, on the part of the litigating parties. 'Negligence' in this context means, carelessness in conducting the litigation on common issues or rights available to all. Negligence in conducting the litigation refers to the failure of the action of a litigant in taking reasonable steps that ought to have been taken to prosecute or defend the case. If the suit was not conducted or resisted with care and prudence that are ordinarily required in such suit, negligence may occur. A Division Bench of the Andhra Pradesh High Court in Chatrati Sriramamurthi and another v. Official Receiver, Krishna and others [AIR 1957 AP 692] at para.6 referred to negligence of a guardian of a minor after relying on many precedents. In para.6, it was observed as follows: