The negligence of the guardian in not attending the Court on the date of hearing does not constitute "sufficient cause" within the meaning of Order 9, Rule 13, Code of Civil Procedure.

JUDGMENT :

B.K. Patra, J. - This application in revision is against an order dated 6-1-1968 setting aside an ex parte decree passed against the opposite parties. The Petitioner as Plaintiff brought Title Suit No. 45 of 1966 on the basis of a registered mortgage bond executed by opp. party No. 1 as Karta of the joint family consisting of himself, his son opp. party No. 2, and his wife opp. party No. 3. Opp. party No. 2 being a minor was represented in the Suit by his father and natural guardian opp. party No. 1. Opp. party No. 1 for self and as guardian for his minor son filed a written statement, the plea taken being essentially a plea of payment. This written statement was adopted by opp. party No. 3. The suit was fixed for hearing to 23-8-1967. As the opp. parties remained absent an ex parte decree was passed against them. Thereafter, an application under Order 9, Rule 13, CPC was filed by opp. party No. 1 on behalf of himself and his minor son, opp. party No. 2. Opp. party No. 3 has also joined in the application. The plea taken was that on the date of hearing opp. party No. 1 fen ill and his wife opp. party no 3 who is a purdanashin lady had to stay away at home to attend on her ailing husband. At the hearing of the application, no evidence was adduced on behalf of the opp. parties. The Petitioner, however, examined the Head Assistant of the Malaria Office, Sambalpur, where opp. party No. 1 works as a peon, to prove that the Latter attended office on the date of hearing. On this evidence, the learned Munsif held that the plea of illness of opp. party No. 1 was false. He felt that in the circumstances, opp. parties 1 and 3 would not have been normally entitled to any relief, but so far as the minor opp. party No. 2 is concerned, the learned Munsif thought that the negligence of his guardian in not attending the Court on the date of hearing constitutes "sufficient cause" within the meaning of Order 9, Rule 13, Code of Civil Procedure, and that consequently so far as the minor opp. party No. 2 is concerned, the ex parte decree passed against him should be set aside. But the learned Munsif, feeling that the ex parte decree cannot be set aside against the minor alone lest it may lead to inconsistent decrees in future, set aside the ex parte decree passed against all the opp. parties. The correctness of this order is challenged in this prooeeding.

2. Order 9, Rule 13 runs thus:

13(1) In any case in which a decree is passed ex parte against a Defendant, he may apply to the Court by which the decree was passed for an order to Bet it aside ; and if he satisfies the Court that the summons was not duly served, or that there was sufficient cause for his failure to appear when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs payment into Court or otherwise as it thinks fit, and shall appoint a day for prooeeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such Defendant only it may be set aside as against all or any of the other Defendants also.

Provided further that no such decree shall be set aside merely on the ground of irregularity in service of Summons if the Court is satisfied that the Defendant knew of the date of hearing in sufficient time to enable him to appear and answer the Plaintiff's claim.

Explanation : A summons served under Order 5, Rule 15 on an adult male member having an interest adverse to that of the Defendant in the subject matter of the Suit shall not be deemed to have been duly served within the meaning of this rule.

(2) The provisions of Section 5 of the Indian Limitation Act, 1908 shall apply to applications under Sub-rule (1).

Where in a suit there is either a minor Plaintiff or a minor Defendant, he must necessarily be represented by a next friend or a guardian-ad-litem, as the case may be. From the very nature of things, the minor himself cannot appear in Court to look