Code of Civil Procedure, 1908: Or.XXXII, r.3 – Suit for specific performance filed by the petitioner – Respondents-defendants after having entered appearance through counsel, remained ex parte – In the plaint, the third defendant was described as minor represented by the next friend (minor’s father) – Petitioners had filed along with the plaint, an application under Or. XXXII, r.3 for appointing second respondent (minor’s father) as guardian – Petitioner had also sought alternate relief, a decree for refund of the money paid with interest in the event of the Court not granting the relief of specific performance – However, trial court passed ex parte decree holding petitioner entitled to relief of specific performance – Even in execution proceedings, respondents were set ex parte and execution petition was allowed – Thereafter, respondents filed application for setting aside ex parte order in execution petition – Meanwhile, petitioners were called upon to deposit non-judicial stamp papers of Rs.1,98,000/- for execution of sale deed – They did so and sale deed was executed – It was only thereafter that respondents filed application for condonation of the delay of 862 days for setting aside the ex-parte decree – This application was dismissed by trial court – Aggrieved respondents filed revision petition under s.115 of the Code before High Court – Entertaining a doubt about appointment of a guardian, High Court summoned original records – Finding that I.A filed along with the plaint for the appointment of guardian was not properly dealt with and that there was no appointment of a guardian for minor as required under Or.XXXII, r.3, High Court invoked the general power of superintendence under Art.227 of the Constitution and set aside ex-parte decree itself, without going into the question of delay and without examining whether there was sufficient cause for condonation of delay – In order to ensure that the petitioners/decree holders are not poorer after a decree (or because of the decree), High Court put the respondents on condition that they should pay of Rs.2,50,000/- as cost to petitioners as the petitioners/decree holders had already deposited stamp papers and got the sale deed executed – Respondents deposited cost of Rs.2,50,000/- – As a consequence, trial court took up the suit for trial after framing issues – Aggrieved petitioner filed instant special leave petition – Held: No dispute on facts that the respondents were grossly negligent in defending the suit as well as the execution proceedings – However, High Court had found, after summoning the records from trial court that as a matter of fact, trial Court failed to appoint a guardian for the minor in a manner prescribed by law – An application was in fact filed by petitioners under Or. XXXII, r.3 – The said application was closed by trial Court – The manner in which the trial Court disposed of the application under Or.XXXII, r.3 is improper and cannot at all be sustained – It is true that High Court was dealing only with a revision petition arising out of an order dismissing a petition under s.5 of the Limitation Act, 1963 – But it does not take away or curtail the jurisdiction of High Court to look into the records with particular reference to an important rule of procedure, especially when the same relates to something concerning persons under disability – The rigorous nature of the Madras amendment to r.3 of Or.XXXII, is perhaps to be attributed to the wider jurisdiction that the High Court exercised on its original side, under Clause-17 of the Letters Patent and the parens patriae jurisdiction that a Court normally exercises while dealing with cases of minors – Therefore, there is no illegality in the action of the High Court in summoning the original records in the suit and finding out whether or not a guardian of a minor defendant was appointed properly in accordance with the procedure prescribed in Or.XXXII, r.3, even in the absence of a specific contention being raised by the petitioners – The contention that in a revision arising out of the dismissal of a petition under s.5 of the Limitation Act, 1963, the High Court cannot set aside the ex-parte decree itself, by invoking the power under Art.227 is not acceptable – It is too well settled that the powers of the High Court under Art.227 are in addition to and wider than the powers under s.115 of the Code – High Court did not commit error of jurisdiction in invoking Art.227 and setting aside the ex-parte decree – In fact High Court also went into the question whether a decree passed against a minor without proper appointment of a guardian, is a nullity ipso facto or whether the same would depend upon prejudice against the minor being established – High Court also found that in this case, the minor was prejudiced. Dismissing the special leave petition, the Court
HELD: 1. There is no dispute on facts and there is no escape from the conclusion that the respondents have been grossly negligent in defending the suit as well as the execution proceedings. But the fact remains that while the parties can afford to remain negligent, the Court cannot. The High Court has found, after summoning the records from the trial Court that as a matter of fact, the trial Court failed to appoint a guardian for the third respondent/minor in a manner prescribed by law. An application was in fact filed by the petitioners-herein/plaintiffs under Order XXXII, Rule 3 of the Code in I.A No.981 of 2013. The said application was closed by the trial Court by an Order passed on 23.03.2014. The manner in which the trial Court disposed of the application under Order XXXII, Rule 3, is without doubt, improper and cannot at all be sustained, especially in the teeth of the Madras Amendment. [Para 14][358-D-G]
2. Order XXXII, Rule 3, is found in the First Schedule to the Code. Under Section 121 of the Code, the Rules in the First Schedule shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of PartX, which comprises of Sections 121 to 131. The High Courts are empowered under Section 122 of the Code to annul/alter or add to all or any of the Rules in the First Schedule, for regulating the procedure of the civil courts subject to their superintendence. In exercise of such a power, the High Court of Judicature at Madras has made Rule 3 of Order XXXII of the Code, much more elaborate than how the Rule was originally framed. [Paras 15, 16][358-G-H; 359-A-B]
3. In the impugned order, the Judge has extracted Order XXXII, Rule 3 of the Code in its original form. But in its application to civil courts subject to the superintendence of the Madras High Court Order XXXII.There is a great deal of difference between the Rules of Procedure laid down in Rule 3 of Order XXXII by the Central Act and Rule 3 as applicable to civil courts subject to the superintendence of Madras High Court. A comparison of the two sets of Rules show that the rules applicable to Courts subject to the superintendence of the Madras High Court are more elaborate and also rigorous. (i) Sub-rules (1) and (2) of Rule 3 of the Rules applicable to Courts subject to the superintendence of the Madras High Court “applicable rules” are additional requirements; (ii) that sub-rule (3) of Rule 3 of the ‘applicable rules’ is a reproduction of sub-rule (1) of Rule 3 of the original Code; (iii) that sub-rule (3-A) of Rule 3 of the ‘applicable rules’ is a reproduction of sub-rule (5) of the Central Act; (iv) sub-rule (7) of Rule 3 of the ‘applicable rules’ is an improved version of subrule (4) of Rule 3 of the Central Act. [Paras 17, 18, 19][359-B-C; 362-G-H; 363-G-H; 364-A-B]
4. More importantly sub-rules (4), (5), (6) and a part of subrule (7) of Rule 3 of Order XXXII of the ‘applicable rules’ prescribe certain additional requirements which are as follows:- (i) when an application for the appointment of a guardian is by the plaintiff, it shall set forth in the order of their suitability, a list of persons with their full addresses for service of notice in Form No.11-A set forth in Appendix H, who are competent and qualified to act as guardian for the minor defendant; (ii) the application for appointment of a guardian should be supported by an affidavit, not merely verifying (as in the Central Act) the fact that the proposed guardian has no interest in the matters in controversy adverse to that of the minor, but also stating additional particulars including the name and address of the de-facto guardian and the names and addresses of other suitable persons, whenever a natural or de-facto guardian is not permitted to act. [Para 20] [364-B-D]
5. Admittedly, the Judge summoned the records from the trial Court after entertaining a doubt about the procedure followed by the trial Court in this case and found as a matter of fact that the trial Court failed to appoint a guardian for the third defendant as required by Order XXXII, Rule 3. The power of the Judge to call for the records and examine the same, in a revision under Section 115(1) of the Code is not and cannot be doubted or questioned by the petitioners. It is true that the Judge was dealing only with a revision petition arising out of an Order dismissing a petition under Section 5 of the Limitation Act, 1963. But it does not take away or curtail the jurisdiction of the High Court to look into the records with particular reference to an important rule of procedure, especially when the same relates to something concerning persons under disability. The rigorous nature of the Madras amendment to Rule 3 of Order XXXII, is perhaps to be attributed to the wider jurisdiction that the High Court exercised on its original side, under Clause-17 of the Letters Patent and the parens patriae jurisdiction that a Court normally exercises while dealing with cases of minors. Therefore, there is no illegality in the action of the High Court in summoning the original records in the suit and finding out whether or not a guardian of a minor defendant was appointed properly in accordance with the procedure prescribed in Order XXXII, Rule 3, even in the absence of a specific contention being raised by the petitioners. [Para 21][364-D-H; 365-A]
6. The contention that in a revision arising out of the dismissal of a petition under Section 5 of the Limitation Act, 1963, the High Court cannot set aside the ex-parte decree itself, by invoking the power under Article 227 is not acceptable. It is too well settled that the powers of the High Court under Article 227 are in addition to and wider than the powers under Section 115 of the Code. The High Court did not committed error of jurisdiction in invoking Article 227 and setting aside the ex-parte decree. In fact the Judge also went into the question whether a decree passed against a minor without proper appointment of a guardian, is a nullity ipso facto or whether the same would depend upon prejudice against the minor being established. The Judge found that in this case, the minor was prejudiced. [Paras 22, 23][365-AB, D-E] Surya Dev Rai vs. Ram Chander Rai and Others (2003)
6 SCC 675 : [2003] 2 Suppl. SCR 290; Radhey Shyam & Anr. vs. Chhabi Nath & Others (2015) 5 SCC 423 : [2015] 3 SCR 197 – referred to.
Lanka Sanyasiv.Lanka Yerran Naidu 1929 Law Weekly 455; Divya Dip Singh and others v. Ram Bachan Mishra and others (1997) 1 SCC 504 : [1996] 7 Suppl.
SCR 705; Anandram and another v. Madholal and
others AIR 1960 Raj 189; Rangammal v. Minor
Appasami 85 Law Weekly 574 – distinguished.
Ouseph Joseph v. Thoma Eathamma AIR 1956 TC 26
– held inapplicable.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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