Authored By : Trevelyan, T. Ameer Ali

Trevelyan and T. Ameer Ali, JJ.

1. The facts necessary for the determination of this appealare as follows:

It has been found as a fact by the Lower Appellate Courtthat the plaintiffs have a good title to the land in question, and that theyand their predecessors in title have been in possession thereof since 1872.

2. In 1880 a suit was brought on behalf of the presentplaintiffs, who were then minors, by their aunt who described herself as theirmother and next friend, and who had obtained a certificate to represent theirestate under Act XL of 1858. Thai suit was against the present defendants andsought for Confirmation of possession of one-anna out of the one-anna andfour-pie share, which is in question in the present suit. On the 24th ofNovember 1880, that suit was struck off by the Munsif for default ofappearance, and on appeal the order of the Munsif was confirmed.

3. The lower Court of appeal in this case has found as a factthat the suit of 1880 miscarried, owing to gross want of care and diligence onthe part of the next friend. He further finds "her neglect to prosecutethe suit with due care was misconduct on her part." The plaintiffs havingattained majority have brought this suit for the purpose of obtaining adeclaration that the decree in the other suit, and the proceedings thereunder,are inoperative against them and also for a declaration of their right to theproperty.

4. They are met by the statutory bar contained in Section103 of the Civil Procedure Code, which provides that, when a suit is wholly ofpartially dismissed under Section 102, the plaintiff shall be precluded frombringing a fresh suit in respect of the same cause of action.

5. The question, therefore, is whether gross negligence onthe part of a next friend prevents the effect of this bar.

6. The statutory bar in Section 103 cannot have a greatereffect than that provided by Section 13, or, in other words, an infant cannotbe in a worse case where his next friend or guardian fraudulently ornegligently omits to appear than where he appears, and fraudulently ornegligently submits to a decree or otherwise prejudices the interest of theinfants. The question, therefore, reduces itself to the question whether thenegligence of a next friend prevents the operation of the law of res judicata.

7. According to the law, as administered in England, grossnegligence as well as fraud prevents the operation of the bar.

8. In Macpherson on Infants, p. 386, we find the following:"An infant plaintiff, though thus favoured in the course of the suit, isas much bound by a decree and by all the proceedings in a cause as a person offull age, and cannot, nor can his representatives, open the proceedings, unlessupon new matter, or on the ground of gross laches, or of fraud and collusion,which will annul the proceedings of the Courts of Justice as much as any othertransactions."

9. In Simpson on the Law of Infants, first edition, p. 475(2nd edition, p. 512), we find the following:

A decree may also be impeached where there has been grossnegligence by the next friend in the conduct of the infants case, or newmatter discovered since the date of the decree.

10. In the case of In re Hoghton IL.R. Eq. 573 Sir R. Malins,V.C, says:

The question which I have to decide is whether this infant,on whose behalf a decree was taken by consent in 1867, is to suffer by anynegligence or want of knowledge on the part of her then next friend. I amclearly of opinion she cannot be called upon to endure that inconvenience...Theproposition that an infant of tender years may have her whole fortune wreckedby the neglect of her friend is so monstrous that I cannot pay attention to it.She is entitled to have a next friend who is diligent and who will protect herinterests.

11. From this it is clear that, according to the law asadministered in England, the gross negligence of his next friend would entitlean infant to obtain the avoidance of proceedings undertaken on his behalf. Wecan see no reason why in this country an infant should be in a worse position.In cases outside Calcutta we are bound, in the absence of statutory provision,to apply rules of equity and good conscience. These rules cannot be morerestricted than the rules of equity administered in England.

12. There is no authority in this country which couldprevent us giving effect to the English rule.

13. We are pressed by the decision of a Bench of this Courtin the case of Eshan Chundra Safooi v. Nundamoni Dassee I.L.R. Cal. 357. Inthat case there was no question either of fraud or of negligence. The learnedJudges expressed their opinion that the plaintiff might have relieved himselfof fraud in one of three ways : First, by an application to the Court in the suitin which the withdrawal took place; secondly, by a regular suit to set asidethe judgment founded upon the withdrawal; or, thirdly, by bringing a fresh suitfor the same cause, and setting up the fraud as an answer to the statutory bar.As fraud and negligence are, in our opinion, on the same footing, the plaintiffhas the same relief in each case. The only passages in the judgments in EshanChundra Safoois case which can be said to conflict with the proposition of lawwhich we are laying down, are where Sir R. GARTH, C.J., says at p. 365 of thereport: "it is difficult to see why a suit properly brought on behalf ofany other person, who cannot act for himself, should be subject (so far as thepresent question is concerned) to other rules than those which are applicableto suits brought by parties in their own names"; and where Mr. JusticeCunningham says at p. 368: "I think we must take it to have been the lawthat where a minor is represented in the manner sanctioned by the law, and theperson so representing him adopts a procedure to which particular consequencesattach by the Code, then those consequences affect the minor."

14. These general propositions were, as appears from therest of the judgments, subject to the exception of fraud. We have no doubtthat, if the question of gross negligence had been in any way before them,their Lordships would have excepted that case also.

15. There is an authority which to some extent supports theview which we have taken in this case. In the case of Koilash Chunder Sirkar v.Gooroo Churn Sirkar 3 W.R. 46 the Judges say this: "There remains thespecial appeal of Koilash Chunder, and on this point we think that the Judgewas clearly wrong. He threw out a certain portion of the claim on the groundthat it ought to have been included in the original suit brought by GoluckMonee; and that as it was not so included, Koilash, the son, was barred bySection 7 of Act VIII of 1859 from preferring it. On this we observe that whenGoluck Monee instituted the suit on behalf of Koilash, the latter was a minor,and there is no law which prevents a minor when he comes of age, suing in hisown name for anything that his guardian, either through ignorance ornegligence, has omitted to prosecute. If this were the law no minor would besafe, and we do not see how Koilash, when he attained majority, was debarredfrom claiming, and that in the suit originally instituted by his guardian, suchproperty as that guardian had omitted in the schedule of the plaint."

16. Section 7 of Act VIII of 1859 corresponds with the firstpart of Section 43 of the present Code, and is as much a statutory bar as isSection 103; so if negligence gets rid of the statutory bar under Section 43,it equally gets rid of the one imposed by Section 103.

17. In our opinion, the view of the Court below is right. Wedismiss this appeal with costs.

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Ramnandan Dobey and Ors. vs. Lalla Sheo Churn Lal and Ors.(08.08.1894 - CALHC)