Back
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
DECREE - MINOR PLAINTIFF - NEXT FRIEND - JURISDICTION - NULLITY - WAIVER - FRAUD - EVIDENCE - CIVIL PROCEDURE CODE, 1908 - ORDER 32, RULES 1, 2, 3, 5, 8, 9, 10, 11 - PRESIDENCY SMALL CAUSES COURT ACT, 1882 - SECTION 32 - GUARDIANS AND WARDS ACT, 1890.
Fact of the Case:
The petitioner, Keshav Deo Tulshan, filed an application for a stay of all further proceedings relating to and/or arising out of an ex parte decree passed in a suit instituted by Jagadish Prasad Tulshan, a minor, through his next friend and certificated guardian, Puranmall Jaipuria. The petitioner alleged that the decree was a nullity as it was passed against a minor without the appointment of a guardian-ad-litem. The petitioner also alleged that the writ of summons in the suit was fraudulently suppressed from him.
Finding of the Court:
The court held that the decree passed against the minor plaintiff without the appointment of a next friend was not a nullity. The court relied on the provisions of Order 32 of the Code of Civil Procedure, 1908, which provide for the appointment of a next friend for a minor plaintiff and the consequences of failure to do so. The court held that the irregularity in instituting the suit without a next friend could be waived by the defendant if he did not raise the objection prior to the passing of the decree. The court also held that the petitioner had failed to prove that the writ of summons in the suit was fraudulently suppressed from him.
Issues: 1. Whether a decree passed against a minor plaintiff without the appointment of a next friend is a nullity? 2. Whether the irregularity in instituting a suit without a next friend can be waived by the defendant? 3. Whether the petitioner had proved that the writ of summons in the suit was fraudulently suppressed from him?
Ratio Decidendi: 1. The court held that a decree passed against a minor plaintiff without the appointment of a next friend is not a nullity. The court relied on the provisions of Order 32 of the Code of Civil Procedure, 1908, which provide for the appointment of a next friend for a minor plaintiff and the consequences of failure to do so. The court held that the irregularity in instituting the suit without a next friend could be waived by the defendant if he did not raise the objection prior to the passing of the decree. 2. The court held that the irregularity in instituting the suit without a next friend could be waived by the defendant if he did not raise the objection prior to the passing of the decree. The court relied on the provisions of Order 32, Rule 2 of the Code of Civil Procedure, 1908, which provides that if the defendant has knowledge of the minority of the plaintiff, he may apply to the court to have the plaint taken off the file. The court held that if the defendant fails to make such an application, he will be deemed to have waived the irregularity. 3. The court held that the petitioner had failed to prove that the writ of summons in the suit was fraudulently suppressed from him. The court considered the evidence adduced by the petitioner and found that it was insufficient to establish fraud.
Final Decision: The court dismissed the petitioner's application for a stay of the reference or for injunction.
( 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 Fira 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 certificated guardian was appointed under the Guardians and Wards Act, 1890 some time in Juno 1950.
( 4 ) IN a previous proceeding Mr. L. P. Agarwalla, Solicitor, acted on behalf of Keshav Dco 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 Sealdnh 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. Omraodcvi 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 it 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 statements 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 party 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 a minor plaintiff as well. If he is not represented by a next fri
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
