Authored By : Mitter, Arthur Wilson, O Kinealy

Mitter, J.

1. The plaintiff filed the plaint in this suit on the 13thMay, 1885, to recover possession of 4 hals, 1 lader 4 joists and 3 reks of landappertaining to pottahs Nos. 50891 and 161, which he purchased in execution ofa decree as the property of one Sham Pershad The suit was brought againstTarini, defendant No. 1, and three other persons. The second defendant isdescribed in the plaint as Nitobashini Chowdh-rain, guardian on behalf of herminor son, Suresh Chunder Warn Chowdhry.

2. The plaintiff alleged that defendant No. 1 and thehusband of Nitobashini Chowdhrain and father of the minor Suresh Chunder, viz.,Durga Churn, dispossessed him. All the defendants are stated in the plaint asliving in commensality, i.e., are members of a joint family. On the 14th Maythe Subordinate Judge directed the plaintiff to produce within one day anaffidavit to the effect that the mother of the minor defendant is his guardian.He, the Subordinate Judge, evidently understood from the plaint that thedefendant No. 2 was the minor Suresh and not his mother Nitobashini, and thepleader who presented the plaint was evidently also of the same view. On theplaintiff making an application with the required affidavit, the Court on the15th May passed the following order: The plaintiff having with an applicationproduced the affidavit regarding the minor defendant being under theguardianship of his motherland the said papers being brought up with theplaint, it is ordered that the suit be registered and the summons he issuedupon the defendants, &c., &c. The defendants, other than the defendantNo. 2, filed a written statement disclaiming their connection with the land insuit and denying having dispossessed the plaintiff. Nitobashini Chowdhrainfiled a written statement alleging that a portion of the land in suitappertained to potash No. 165, and had been the property of her co-wife; thaton her death it devolved upon her husband under the law of inheritance, andthat since the death of her husband she has been in possession of it "onbehalf of the minor defendant."

3. The Court of first instance dismissed the suit. On appealthe District Judge awarded a decree in favour of the plaintiff for a portion ofthe land claimed, finding that it appertains to the plaintiffs estate and notto the defendants estate. The minor Suresh Chunder, represented by his motheras guardian, has preferred this second appeal.

4. The question that has been referred to us is, whether,under the circumstances, the decree ought to be set aside as against theappellant on either of the grounds mentioned in his eleventh ground of appeal.That ground is as follows:

That the minor Suresh Chunder Chowdhry not being made adefendant in proper form, and no order having been recorded by the Court;appointing his mother Nitobashini Chowdhrain guardian ad litem, the suit oughtto have been dismissed.

5. As to the first branch of this ground, it appears to methat the suit was substantially brought against the minor. This appears fromthe orders of the Court referred to above and from the allegations made in theplaint and the written statement. The dispossession, it is alleged in theplaint, was by defendant No. 1, and the father of the appellant, and I gatherfrom the judgment of the lower Courts that evidence was adduced to the effectthat the father of the appellant was in possession of the disputed land On thedeath of the father of the appellant, the appellant, and not his mother, wouldrepresent the interest of the deceased person in the property in dispute. Inthe written statement filed by Nitobashini it was claimed as the property ofthe minor. An issue was framed with reference to the question of title set uprespectively by the plaintiff and Nitobashini Chowdhrain on behalf of the minorappellant, and the District Judge has found that issue in favour of theplaintiff. Under these circumstances I agree with the learned Judges who havereferred the case, "that the suit was throughout regarded by the Court andby all those who took part in it as one against the minor." That being so,the appellant ought not, in my opinion, to succeed on the ground that there wasmerely an error of form in describing him as defendant when be has not beenprejudiced by that error. Section 578 of the Civil Procedure Code says that nodecree shall be reversed on account of an error of this description.

6. The second branch of the eleventh ground of appeal isthat no order was recorded by the lower Court appointing Nitobashini Chowdhrainas guardian ad litem of the appellant. Now it seems to me that the Court, onthe affidavit of the plaintiff being filed, applied its mind to the questionwhether the mother was a fit person to act as guardian ad litem, and I agreewith the learned Judges who have referred this case, that it "sanctionedthe representation of the minor by his mother as guardian ad litem, though noorder was drawn up on the subject." If we are satisfied that the Courtapplied its mind to the consideration of the question of the representation ofthe minor, the mere omission to record a formal order sanctioning therepresentation by a particular person would not be a valid ground to reverse adecree; it would be a defect coming within the purview of Section 578 of theCivil Procedure Code already referred to I have said all that is necessary toanswer the question referred to us. But another question has been argued beforeus. It is this, whether the appointment by the Court of the mother of theappellant as his guardian without any notice to him is void, and whether on theground of this error the decree against the minor is liable to be reversed. Theanswer to this question will mainly depend upon the examination of theprovisions of Chapter XXXI of the Code of Civil Procedure, that is, the chapterdealing with the subject of suits by and against minors. I find that theprovisions of this chapter have been taken from the rules framed by this Court,regulating the practice in its Original Side on the 10th June 1874, andpublished in the Calcutta Gazette of 1874, page 1008. Of the rules adopted bythis Court on that date, Nos. 8 to 35 bear upon this subject.

7. The first section of the Chapter, viz:

8. Rule No. 24 has not been taken at all.

9. Section 456, as it stood in the Code of 1877, was takenfrom Rule No. 25. In the Code of 1877, the words "or by theplaintiff" to be now found in the section in question, which were added toit in 1882, were omitted.

10. Section 457 has been taken from Rule No. 26.(sic)precise in their proceedings so as to make them strictly in conformity with thelaw for it is notorious that it rarely happens that a minor, whether plaintiffor defendant, is properly described in the proceedings ; and consequently, muchvaluable time and money is needlessly spent in the Courts of Appeal indetermining the exact position which such a person really occupies in the case.Such irregularities have been repeatedly noticed by this Court, and I trustthat the prominence now given to them will have the desired result.

Arthur Wilson, J.

17. In order to make an infant effectively a defendant to asuit, so as to bind him by a decree in the suit, three things must in myjudgment appear : First, that on the face of the plaint it purports to beagainst the infant; secondly, that the infant has been duly represented by aguardian ; thirdly, that he has been duly summoned, or that something hasoccurred to dispense with service of summons. In the present case, I agree withMitter, J., that the first condition has been complied with. I read the body ofthe plaint in the same sense as he does, and that being so, I do not think thefault in the form of the title is fatal, though I do think such defects aremost mischievous, inasmuch as they give rise to such uncertainty as has arisenin this case, and often prolong litigation, or afford grounds for an appeal todetermine a point on which no doubt should possibly exist.

18. The real difficulty in the case is as to the other twoconditions--service and representation of the infant. The procedure adopted wasthis. The plaintiff in his plaint named the infants mother as his guardian.When he presented his plaint the Judge required an affidavit as toguardianship, and when the required affidavit was produced, an order was made thatthe plaint should be registered and summons issued

19. The Judge intended by this order, as is found, tosanction the representation of the infant by his mother ; but no formal orderto that effect was drawn up. The summons was then served upon the mother. I donot think the absence of a formal order appointing the guardian is fatal,whereas here the record shows that the Judge has arrived at a judicialdetermination upon the point. But the procedure followed seems to me open tograve objection. The procedure for obtaining the appointment of a guardian adlitem is contained in Section 456 of the Procedure Code. "An order for theappointment of a guardian for the suit may be obtained upon application in thename and on behalf of the minor, or by the plaintiff. Such application must besupported by an affidavit verifying the fact that the proposed guardian has nointerest in the matters in question in the suit adverse to that of the minor,and that he is a fit person to be so appointed. Where there is no other personfit and willing to act as guardian for the suit, the Court may appoint any ofits officers to be such guardian, provided that he has no interest adverse tothat of the minor."

20. That section, I think, contemplates that an applicationby a plaintiff is to be made at such a stage of the proceedings that the infanthas at least an equal opportunity of applying. I am of opinion that no orderappointing a guardian ad litem for an infant defendant, on the application ofthe plaintiff, should be made ex parte, and that no such order should be made,until the Court is satisfied that the infant has been duly served, and thatthere has been an opportunity for making an application on behalf of theinfant. But, though not without much hesitation, I have come to the conclusionthat the fact of the order having been made ex parte, and having been madebefore service of summons, is not necessarily fatal; but that those defectsfall within the terms of Section 578. I have arrived at this conclusionsubstantially for the reasons stated by Mitter, J.

21. The question as to service of summons is one of somedifficulty. There are no special provisions as to the service of summons uponinfants, and therefore the same rules appear to apply as in the case of adults.There should be personal service under Section 75 of the Procedure Code, orservice in some of the ways provided in the following Sections, if thecircumstances are such as to render any of those Sections applicable, orfailing service in these ways, there should be an order under Section 82,directing the mode in which service is to be effected. I should hesitate to saythat service on a guardian ad litem is good service under the Code. But if theappointment of the guardian, however irregular, was not a nullity, it follows,I think, that the guardian had power to waive, and by appearing and defendingdid waive, all objections arising from want of service or defect in the serviceof summons. At the same time I think it right to say that in my opinion such a procedureas has been adopted in this case is liable to lead to the gravest consequences.It is not generally very difficult to make out a plausible case on affidavit,when there is no fear of cross-examination and no chance of contradiction, andthe Judge has nothing but the Affidavit itself to look to. And under thisprocedure it would be quite possible that a plaintiff might succeed in makingthe Court believe, at the time he presented his plaint, that his own nomineewas a fit guardian for an infant defendant, and might then carry on thelitigation to the and, without the infant or any one really interested in hiswelfare ever hearing of it.

22. In the particular case before us, I think it is fairlyclear that the interests of the infant were as well protected as if theproceedings had all been in order. I therefore concur in answering thequestions referred to us in the negative.

O Kinealy, J.

23. In this case Jugut Chunder Deb sued several defendantsfor possession of land. The second defendant was described in the plaint asNitobashini Chowdhrain, guardian on behalf of her own minor son, Suresh ChundraWum Chowdhry. The third defendant was described as Ichhamoyi Chowdhrain, widowof the late Earn Cumar Wum Chowdhry. On the back of the plaint there is anorder directing plaintiff to produce an affidavit to show that Nitobashini wasthe guardian of Suresh Chunder Wum Chowdhry. On the 14th of May an affidavitwas filed, in which it was stated that the lady had charge of the minor asguardian, and that her interest was in no way hostile to his. On the 15th theJudge, having before him both the plaint and the affidavit, directed that theplaint should be registered, the defendants summoned, and the 18th June fixedfor the hearing of the case. On the 22nd May summons was issued against thedefendants as they were described in the plaint, and subsequently the Nazirmade a return that the defendants Nos. 2 and 3 being purdanashin ladies did notappear, and therefore he affixed the summons to their house. The case proceededon this footing to trial, and now it is contended in appeal that the minor isnot bound by the suit.

24. After a plaint has been filed, the first duty of theCourt is, under Section 64 of the Code of Civil Procedure, to issue a summons,calling on the defendant to appear and answer the claims on a day specifiedtherein, either in person or by pleader duly instructed, or accompanied by someperson able to answer all material questions. The only exception to this ruleis where the defendant appears on the presentation of the plaint, and admitsthe plaintiffs claim. Consequently it appears to me that the duty of the Judgeon receiving the plaint was to issue a summons on the defendant. If thedefendant was the minor, he should have been summoned. If the defendant wasNitobashini alone, she should have been summoned. From the return it appearsthat the lady was treated as a party in the case, for the Nazir reported thatbecause she was a purdanashin she could not be served. No summons was issued orserved on the minor defendant. Subsequent to the issue of summons, the Courtmust, in the case of a minor, proceed under Section 443 to satisfy itself ofthe fact of minority; and when it is so satisfied, to appoint a proper personas guardian to put in a defence.

25. In this case the Judge issued no summons on thedefendant, minor; came to no finding that he was a minor; made no orderappointing the lady his guardian, but contented himself by directing thatsummons should issue on the defendants. It thus seems that in no one singlerespect has the first Court complied with the provisions of the Procedure Code.The minor had no notice of the action. The case was allowed to go on againsthim without any decision as to whether he was a minor or not, and he had novoice in the determination of whether he was a minor, or whether the lady was aproper guardian for him.

26. One of the elementary rules of pleading is that nodecree or order finally deciding a question between parties should be madeabsolute, ex parte, without previous notice to the party affected by it. In thecase of Ferguson v. Mahon 11 A. and E. 179 Lord Denman, C.J., refused torecognize a decree of the Irish Court of Common Pleas, on the ground that thedefendant had no notice of the action. In that case the defendant pleaded"that he was not at any time arrested upon, or served with, any processissuing out of the said Court of Common Pleas in Ireland" * * * "nordid he, defendant, at any time appear in the said Court to answer the plaintiffin the said action," and Lord Danman held that the judgment appearing tohave been obtained behind the back of the defendant, it could not be made thefoundation of an action in England. In Buchanan v. Bucker 1 Camp 62 LordEllenborough, C.J., said : "It was contrary to the first principles ofreason and justice that in either Civil or Criminal proceedings a man should becondemned before he was heard, and further that if such a practice were passed,it was an evil practice, and could not be sanctioned." This opinion thoughsubsequently modified in regard to artificial modes of citation, seems, so faras the question of no notice is concerned, to be the present law. The doctrine,therefore, that a decree against a parson in a cause, who has never been summonedand has had no opportunity to defend himself, is not binding on him, does notrest upon any technical pleas or rules of English pleading, but, as it is putin the different decisions, upon the ground that it is opposed to naturaljustice. If that be so, it appears to me impossible to say that the SubordinateJudge, by allowing the case to be carried on, without determining the status ofthe so-called minor defendant, without ever hearing him or giving him notice ofthe claim, and thus acting in contravention of the clear spirit of the Codecould have passed any order or decree that would bind the minor.

27. It may be urged that under Section 453 an applicationmay be made ex parte, and there is nothing in the Code prohibiting the Courtfrom deciding that a person is a minor without giving him notice to show cause.Section 443 declares that the Court shall be satisfied of the fact of theminority, and I take it that the Court is to be satisfied of that fact in theway in which it is to be satisfied with regard to other questions that mayarise in the case and is governed by the ordinary Procedure. In other words,before the Court comes to a decision ex parte on any such question, it must, inthe words of Section 100, be "proved that the summons was duly served,"and it lies upon those who contend that the procedure which may be followedunder Section 453 is not the ordinary procedure of the Courts, but is aprocedure which is declared by the Courts of England to be against naturaljustice, to show authority for it.

28. I am, therefore, of opinion that both on principles ofjustice and on the Procedure Code itself, no guardian should be assigned on theapplication of the plaintiff, unless it has been proved to the satisfaction ofthe Court that the defendant is a minor; that summons has been duly served onhim; and that he has had notice of the application. It seems, therefore, to meimpossible to support the decree of the lower Court, and I think that allproceedings against the minor, after the filing of the plaint, should be setaside, and the plaintiff should, if he wishes to proceed against the minor, doso by a new trial and in a regular manner.

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Jagut Chunder Deb vs.Suresh Chunder Wum Chowdhry (14.08.1887- CALHC)