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IN THE HIGH COURT OF MADRAS
N. SESHASAYEE, J.
P. Suresh – Appellant
Versus
R. Rangasamy and Others – Respondents
S.A. No. 224 of 2007, M.P. Nos. 1, 2 of 2007
Decided On : 30-11-2020
Civil Procedure Code,1908 - Order XXXII Rule 3A(2), Order 32 Rule 11 and Order 32 Rule 3A(1) and (2), 3 and 3A - Recovery of possession of the suit property and for mandatory injunction to remove certain obstruction in the pathway - Encroached into their property - Recovery of the property so encroached - Whether ex-parte decree unrepresented by guardian is not vitiated under law by Order 32 Rule 11 and Order 32 Rule 3A(1) and (2) of Civil Procedure Code and natural justice, since denial of apparently to defend the case on behalf of minor sixth defendant - Whether Order XXXII Rule 11 is mandatory - Whether non-appointment of a new guardian under Rule 11(2) is same as the non-appointment of a guardian under Rule 3 - whether the presence of the minor must be understood as a necessary party or a proper party in the suit - Whether the karta of the coparcenary was in the party array to defend it - Father of the first defendant is one Ramasamy. Ramasamy along with his sons had instituted O.S. against a certain Kandasamy Gounder, and his two sons Appu alias Palaniappan, and Durai as defendants 1 to 3, for recovery of possession of the suit property and for mandatory injunction to remove certain obstruction in the pathway - Plaintiffs alleged that the suit property belonged to them and that the defendants had encroached into the suit property - Copy of the plaint is Ext.A2 - pendency of O.S. both Ramasamy and Appu alias Palanisamy (the second defendant) died. Consequent to Palanisamy's death, his widow and children were brought on record as defendants 4 to 6. Of them, the present plaintiff was arrayed as the 6th defendant - He was a minor at that relevant time, and his mother, the 4th defendant was appointed as his guardian – Held, guardian appointed for the plaintiff in O.S. 93/1989 did not file any written statement and defend the action - Now, unless plaintiff is shown to have any substantial and independent interest in the suit property which had gone undefended in O.S. 93/1989, he cannot be said to be prejudiced. The plaintiff however, has not disclosed even in this suit the nature and extent of his right or interest in the subject matter of the earlier suit - In the absence of pleading or proof of any such right or interest in the subject matter of O.S. 93/1989, failure of guardian to contest suit cannot be said to have prejudiced the minor - Plaintiff has sought only a declaratory decree to declare that the decree passed against him in O.S. void, and for a bare injunction - He has not sought a declaration of his right in the suit property - Decree declaring an earlier decree as void is a mere enabling decree, passing which Court would be in a position to declare the right of the plaintiff. A suit where the plaintiff seeks only an enabling relief but omits to seek a substantial relief is plainly not maintainable – Ordered Accordingly
JUDGMENT :
N. SESHASAYEE, J.
1. The plaintiff in O.S. No. 476/1999, on the file of the District Munsiff Court, Namakkal, is the appellant herein. He laid the suit for declaring that the decree passed in O.S. 93/1989 on the file of the same court - is not binding on him, and for other ancillary reliefs. He lost the suit successively both before trial court and the first Appellate Court. Rival parties would be referred to by their ranks before the trial Court.
(I) The Pleadings:
2. The case of the plaintiff can be divided into two parts: There is no dispute regarding facts that led to the filing of the present suit. This is the first part. And, the dispute he has raised in this suit constitutes the second part:
(i) The father of the first defendant is one Ramasamy. Ramasamy along with his sons had instituted O.S. 93/1989 against a certain Kandasamy Gounder, and his two sons Appu alias Palaniappan, and Durai as defendants 1 to 3, for recovery of possession of the suit property and for mandatory injunction to remove certain obstruction in the pathway. The plaintiffs (Ramasamy and his sons) alleged that the suit property belonged to them and that the defendants (Kandasamy Gounder and his sons) had encroached into the suit property. The copy of the plaint is Ext.A2.
(ii) During the pendency of O.S. 93/1989, both Ramasamy (first plaintiff) and Appu alias Palanisamy (the second defendant) died. Consequent to Palanisamy's death, his widow and children were brought on record as defendants 4 to 6. Of them, the present plaintiff was arrayed as the 6th defendant. He was a minor at that relevant time, and his mother, the 4th defendant was appointed as his guardian.
(iii) The plaintiff's grandfather (Kandasamy, the first defendant in O.S. 93/1989) alone filed the written statement. None of the other defendants contested the suit. In other words, the guardian of the 6th defendant-minor did not file any written statement on his behalf and contested the suit. Ultimately, on 30-06-1993, an ex-parte decree came to be passed in O.S. 93/1989. Copy of this decree is Ext.A-3.
(b) The Dispute:
(i) The plaintiff's mother as his guardian had not bestowed adequate care to defend his interest in O.S. 93/1989, and she had been callous and negligent in failing to contest the suit and in protecting the right of the plaintiff in the suit property, which has resulted in the plaintiff suffering an ex-parte decree (Ext.A-3) there.
(ii) While so for executing the decree passed in O.S. 93/1989, the defendants herein have laid REP. No. 186/97 for delivery of suit property in O.S. 93/1989. It is only now did the present plaintiff come to know of what had happened in the earlier suit. The plaintiff soon made enquiries with his paternal grandfather, the first defendant in OS. 93/1989, to which the latter would say that since that suit was only for a right of pathway, he did not offer a contest.
Since the present plaintiff's interest was not defended in the earlier suit, the present suit is laid to declare that the decree passed in O.S. 93/1989 is not binding on him and to cancel it.
3. The case of the defendants (plaintiffs in O.S. 93/1989) was that the suit property originally belonged to their father. Be that as it may, the grandfather of the present plaintiff and the former's two sons (the defendants 1 to 3 in O.S. 93/1989) had encroached into their property, and hence the earlier suit was necessitated for recovery of the property so encroached. The plaintiff's grandfather had filed his written statement, and contested the suit. Subsequently, on the death of the second defendant (father of the plaintiff here), his heirs were impleaded. The counsel who appeared for the other defendants, entered appearance for defendants 4 to 6, the heirs of the deceased second defendant as well. The mother of the plaintiff was appointed as his guardian in that suit.
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