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HIGH COURT OF CALCUTTA
Ramendra Mohan Datta
KESHAV DEO TULSHAN - Appellant
Versus
JAGADISH PRASAD TULSHAN - Respondent
Suit 251 Of 1971
Decided On : August 30, 1971
CIVIL PROCEDURE CODE - ORDER 32 - MINOR PLAINTIFF - DECREE PASSED IN SUIT BY MINOR WITHOUT NEXT FRIEND - NOT A NULLITY - DISTINCTION BETWEEN MINOR PLAINTIFF AND MINOR DEFENDANT - WAIVER OF IRREGULARITY BY DEFENDANT - FRAUDULENT SUPPRESSION OF SUMMONS - NOT PROVED.
Fact of the Case:
A suit was instituted by a minor plaintiff without a next friend. The defendant did not raise any objection to the minority of the plaintiff until after the decree was passed. The defendant then filed an application for stay of the reference and for injunction to restrain the plaintiff from taking any further steps in execution of the decree.
Finding of the Court:
The decree passed in a suit by a minor without a next friend is not a nullity. The irregularity in instituting the suit does not make the suit wholly bad but makes it a defect in procedure. The only way it can be corrected is when the defendant makes an application under Rule 2 of Order 32 of the Code of Civil Procedure. If such an application is not made in between the time of the institution of the suit and the passing of the decree thereon, the defendant would be precluded from raising the said point thereafter and will not be permitted to assert that the decree passed in such a suit is in any way a bad decree.
Issues: Whether the decree passed in a suit by a minor without a next friend is a nullity.
Ratio Decidendi: There is a distinction between the case of a minor plaintiff and a minor defendant. In the case of a minor plaintiff, the irregularity in instituting the suit does not make the suit wholly bad but makes it a defect in procedure. The only way it can be corrected is when the defendant makes an application under Rule 2 of Order 32 of the Code of Civil Procedure. If such an application is not made in between the time of the institution of the suit and the passing of the decree thereon, the defendant would be precluded from raising the said point thereafter and will not be permitted to assert that the decree passed in such a suit is in any way a bad decree. In the case of a minor defendant, the absence of the guardian does not make it only an irregularity in procedure. It is a matter of substance and goes to the very root because until the minor is represented he would not be a party to the suit and consequently to the decree.
Final Decision: The application for stay of the reference and for injunction is dismissed.
( 1 ) THIS is an application for an order, inter alia, for stay of all further proceedings relating to and/or arising out of the ex parte decree dated March 28, 1964, passed in Suit No. 2678 of 1953 including the pending reference in respect thereto and/or for stay of further operation of execution of the said decree. In the alternative, an order of injunction has been prayed for restraining the defendant, his servants and agents from taking any further or other steps in execution of the ex parte decree dated March 28, 1964 passed in Suit No. 2678 of 1953 and/or from proceeding with or continuing the said pending reference thereunder.
( 2 ) THIS case has a very long history behind it.
( 3 ) THE suit being Suit No. 2678 of 1953 (Jagadish Prasad Tulshan v. Keshav Deo Tulshan and another) was instituted against the petitioner and against one Bharat Fire and General Insurance Limited. The said Jagadish Prasad Tulshan being a minor instituted the said suit through his next friend and the certificated guardian by the name of one Puranmall Jaipuria. The certified guardian was appointed under the Guardians and wards Act, 1890 some time in June 1950.
( 4 ) IN a previous proceeding Mr. L. P. Agarwalla, Solicitor, acted on behalf of Keshav Deo Tulshan, one of the defendants in that suit and accordingly Messrs. P. D. Himatsinghka and Co. , the then solicitors for the said minor plaintiff Jagadish Prasad Tulshan by their letter dated July 31, 1953 enquired of the said solicitor Mr. L. P. Agarwalla whether he had instructions to accept the service of the writ of summons on behalf of Keshav Deo Tulshan. No reply was received from the said solicitor and accordingly the writ of summons was caused to be served through the Court at Sealdah on or about September 13, 1953. The writ of summons was also served on the Insurance Company being the other defendant against whom the said suit was proceeded with. The defendant Keshav Deo Tulshan neither entered appearance nor filed any written statement.
( 5 ) BY an order dated September 3, 1956 the said Puranmull Jaipuria was discharged from further acting as the certificated guardian and the next friend of the minor plaintiff in the said suit and in his place Smt. Omraodevi Tulshan the mother of the minor was appointed the certificated guardian and next friend of the minor. The minor plaintiff Jagadish Prasad was governed by the Indian Majority Act and accordingly he was to attain majority upon completion of the age of 21 years.
( 6 ) BY an order dated August 28, 1961 on the application of the said Jagadish Prasad was recorded that he had attained majority. By another order dated September 11, 1961 the mother was discharged from further acting as the certificated guardian and next friend of Jagadish Prasad in the said suit No. 2678 of 1953.
( 7 ) ON the basis of the statement in the several affidavits of the said two certificated guardians and of the said Jagadish Prasad himself it was argued that the said Jagadish Prasad on September 11, 1961 could not and as such did not attain majority. Accordingly, the discharge of the mother from acting as the next friend of Jagadish Prasad, from the suit left the minor without a representative and as such no decree could be validly passed in such a suit.
( 8 ) IT is contended that Jagadish remained a minor and a suit by the minor without his next friend will make the decree null and void. It is well settled that a decree passed against a minor defendant without the appointment of a guardian-ad-litem is a decree without jurisdiction and in effect there is no decree against the minor because the minor not having been represented by a guardian would not be treated as a property at all in the suit. Such a decree, if passed, is a nullity as against such minor defendant; but the point that has been argued before me is that the same principle should apply in the case of minor plaintiff as well. If he is not represented by a next friend befo
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