JUDGMENT
Harphul Singh Brar, J.
1. Briefly stated the facts for disposal of this appeal are as under :-
One Smt. Basanti was originally married to Sampuran Singh, father of the plaintiff-appellants. Out of this wedlock, two sons namely Jagir Singh and Chamela Singh were born. Both of them have died. Jagir Singh is survived by his widow Smt: Dalip Kaur alone, while Chamela Singh is survived by his widow Smt. Bachni and five sons namely, Gurbax Singh, Tek Singh and Gurbachan Singh, plaintiff-appellants and Manan Singh respondent who was a plaintiff in the Lower Court and one Kangan Singh who had died before the filing of the suit in the Lower Court. Sampuran Singh died about more than 50 years ago. After his death, his widow Smt. Basanti entered into a Karewa marriage with one Sadhu Singh. Out of this marital union, no issue was born. Sadhu Singh owned the suit land and after his death which occurred some 40 years ago, suit land devolved upon his widow Smt. Basanti. Smt. Basanti died some 13/14 years before the filing of the suit in the Lower Court. At that time her two sons namely Chamela Singh, father of the plaintiff-appellants and respondent Manan Singh and Jagir Singh were alive. Consequently, both Chamela Singh and Jagir Singh succeeded to her property. Chamela Singh died some 11/12 years before the institution of the suit. The plaintiff-appellants and respondent Manan Singh claim his inheritance. The land left behind by Smt. Basanti was mutated in the name of Smt. Jeeto, defendant-respondent No. 3 vide mutation No. 923, sanctioned on 21.2.1966. Afterwards defendant-respondent Jeeto sold part of the suit land measuring 3 bighas 2 biswas in favour of Gurbax Singh and Hardayal Singh, defendant-respondent Nos. 1 and 2 respectively. This sale of Jeeto was successfully pre-empted by Hardayal Singh, Harbans Singh, Ram Singh, Gurmail Singh and Jagtar Singh, defendant Nos. 3 to 8 respectively, and obtained the actual possession. Later on defendant-respondent Nos. 4 to 8 transferred this land in favour of respondent Nos. 9 and 10. Plaintiffs in their suit challenged the legality of the mutation sanctioned in favour of defendant-respondent Jeeto, and the subsequent transfers in favour of different defendants as being null and void and ineffective in respect of third claim of inheritance. The plaintiffs sought two-fold relief in the Lower Court. A decree for possession for a part of the land, while qua the remaining land, they sought a declaration that they were owners in possession of the same notwithstanding the sanctioning of the mutation in favour of defendant-respondent Jeeto.
2. In the plaint, it was disclosed by the plaintiffs that earlier with regard to the suit land, a suit was filed in their name and at that time plaintiffs No. 1 to 3 were minors. Consequently, the suit was filed by their mother as their natural guardian and next friend. As their next friend did not pursue the suit diligently, the same was dismissed in default of appearance on 1.2.1975. An application for restoration of the suit was moved by the mother of the plaintiffs but at a very belated stage and that application was also dismissed. The order dismissing the application for restoration of the suit was agitated in an appeal which had been preferred long after the running out of the period of limitation. The appeal was dismissed as hopelessly barred by limitation. Plaintiffs wanted to enforce their rights qua the suit land after having attained the majority and they sought to get rid of the result of the earlier litigation on the allegations that their mother misconducted herself and was grossly negligent in the pursuit of their case.
3. The suit was contested by the defendants. Defendant Nos. 3 to 8 filed a joint written statement, while a separate written statement was filed by defendant No. 9 and in his written statement, he put forward the objection that the suit was not maintainable in view of the fact that a previously instituted suit of the plaintiffs had been dismissed in default on 1.2.1975 under Order 9 Rule 8 C.P.C. and that the order of dismissal in default had become final as both the applications for restoration of the suit and the appeal against the dismissal of the application for restoration of the suit had been dismissed.
4. The learned trial Court framed the preliminary issue as, according to the learned trial Court, the suit could be disposed of on an issue of law namely, the bar to the suit created by Order 9, Rule 9 C.P.C. The following issues were framed by the trial Court :-
1. Whether the suit is barred under Order 9, Rule 9 C.P.C. ? O.P.D.
2. Relief.
5. At the trial, the defendants proved the certified copies of the various orders passed in earlier litigation, while evidence of the plaintiffs consisted of the sworn testimony of Manan Singh, one of the plaintiffs.
6. The learned trial Court decided the preliminary issues against the plaintiffs by holding that the plaintiffs have failed to prove that their mother who acted as their next friend in the previous suit, was negligent or she misconducted herself in the prosecution of the previous suit. The present suit, subject matter of which is also the subject matter of the previous suit, stood barred by Order 9, Rule 9 C.P.C. and the suit of the plaintiffs was ultimately dismissed.
7. An appeal was filed against the judgment of the trial Court which was dismissed by the District Judge vide his order dated 21.8.1984. The District Judge upheld the finding of the trial Court on the preliminary issue and affirmed the same. In this Regular Second Appeal, it has been urged on behalf of the appellants that the preliminary issue framed by the trial Court could not be held as a legal issue as it required adducing of evidence and as such it could not be tried as preliminary issue. The lower Court, according to the learned counsel, should have raised and recorded all the issues arising from the pleadings of the parties and then pronounced judgment on all of them. This argument of the learned counsel seems to be without merit. Proviso to Order 14 Rule 2(2) C.P.C. provides as under :-
“(2) Where issues both of law and of fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
(a) the jurisdiction of the Court,
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.”
8. The above said provision of law is an exception to the general rule contained in Rule 2(2) which lays down that notwithstanding that a case may be disposed of on a preliminary issues, the court shall, subject to the provisions of Sub-rule (2), pronounce the judgment on all the issues. The case is hand squarely falls within the ambit of Order 14, Rule 2(2) C.P.C. and as such no fault can be found with the action of the lower Court in treating issue No. 1 as a preliminary issue.
9. Learned counsel for the appellants has then argued that from the material on the record, gross negligence on the part of Smt. Bachni, the next friend of the minor plaintiffs in the earlier suit is apparent from the facts on the file. In this regard, he has referred to delay in filing the application for setting aside the dismissal order for default of appearance and delay in preferring the appeal which was dismissed on the ground of having been preferred after the expiry of period of limitation, provided for the same. According to the learned counsel, all these facts taken together show that the conduct of the guardian shows gross negligence in pursuing the matter. This argument of the learned counsel is also without any merit.
10. I do not find any fault with the findings of the trial Court as well as of the lower appellate Court affirming the same and in holding that from the record of the case, gross negligence on the part of the guardian of the plaintiffs in the earlier suit is not proved. The earlier suit was instituted on 14.6.1974. It was dismissed in default of appearance on 1.2.1975. The application for restoration of the suit was moved on 4.9.1975 by the guardian of the minor plaintiffs alone and the same was dismissed on 29.7.1978 as being without merit. Thereafter an appeal was preferred in the Court of learned District Judge, Patiala which was heard and dismissed by the District Judge on 31.10.1979 as barred by time. The learned counsel emphasized that although the mother of the minors did file restoration application, but she never pursued it vigorously. She took no pains to establish sufficient cause for her failure to put appearance when the suit was called on for hearing. Guardian of the minors, according to the learned counsel, did not take requisite steps to go in appeal within the period of limitation. Though she had preferred the appeal, but long after the prescribed period of limitation. According to the learned counsel, all these facts show gross negligence on the part of the guardian of the minors. Here also, I endorse the decision taken by the courts below that the guardian has not been negligent in the conduct of the case. The guardian who was a party to the suit in her own rights as well, did take necessary steps to cross various legal hurdles for obtaining the relief in the suit. From the circumstances brought to my notice by the learned counsel, it is not possible to impute gross negligence to the guardian although, she may not be able to escape the charge of being somewhat care free in the pursuit of the litigation. Moreover, the minor could challenge a decree passed against them during minority when they were represented through a guardian only on the ground of fraud and collusion on the part of guardian and none else. A reference in this regard may be made to Sher Mohd. v. Dost. Mohd., A.I.R. 1935 Lahore 44, wherein placing reliance on an earlier ruling of the same court, reported as A.I.R. 1920 Lahore 417 it has been held that a decree is valid and can be availed of so long as it is not set aside. Even though opposite party is minor, minors can get the decree set aside on proof of grounds of dishonesty or fraud. The observations in the earlier ruling which was quoted with approval, are noted below: –
“Where a decree has been made against a minor duly represented by his guardian and the minor on attaining his majority seeks to set aside that decree by a separate suit, he can succeed only on proof of fraud or collusion on the part of his guardian. If the guardian neglects to support the case of the minor there is nothing to show that he did so deliberately, that circumstance alone would not entitle the minor to avoid the operation of decree.”
11. The same view has been taken by the Punjab and Haryana High Court in Major v. Hawa Singh, 1982 All India Land Laws Reporter 503. According to the facts of this authority, a suit on behalf of a minor was withdrawn by the next friend who was none else than the mother, it was held that no fresh suit by the maternal uncle as next friend of the minor was maintainable when permission to file a fresh suit had not been taken while withdrawing the earlier suit. Negligence of the guardian is no ground for maintaining second suit. The view of the lower Appellate Court that the plaintiffs can challenge the negligence of their guardian, in the earlier suit, was set aside observing that the same is not warranted by any statute or binding precedent.
12. The ruling cited by the learned counsel for the appellants in A. Samarkatha Nadar v. Y. James, A.I.R. 1947, Madras 153 is not helpful to the case of the appellants. It was a case of a minor whose suit filed through his mother was dismissed in default for her appearance. Application for restoration of the suit was moved which was dismissed. An appeal was preferred and that too was dismissed. Minor brought a fresh suit through another guardian. In this authority it has been observed that a minor can avoid a decree passed against him on the ground of gross negligence of the guardian ad litem even if the minor had not succeeded in proving fraud and collusion on the part of guardian. It was further observed that negligence of guardian in order to be a ground for avoidance of a decree must be of such character to justify the inference that minor’s interests were not at all protected and in substance they went unrepresented in the trial Court. On facts, it was held that the guardian had not been grossly negligent in the conduct of the case as although he must be illiterate, had engaged a qualified lawyer. The failure of lawyer to raise a point of law which may well have been raised by him, could not be considered as guardian’s gross negligence. In any case, the consistent view of the Punjab and Haryana High Court is that a minor can avoid a decree passed against him when he was defended by a guardian only if the plaintiffs could establish either fraud or collusion and not on any other ground. Moreover, in this case, both the courts below have held after perusing the record that no gross negligence is proved on the part of the guardian in conducting the case.
13. Learned counsel for the appellants has further argued that under Order 32 Rule 3-A Sub-rule (2) it is provided that nothing in this rule shall preclude the minor from obtaining any relief under any law for the reason of misconduct or gross negligence on the part of next friend or guardian resulting in prejudice to the interest of minor. I do not want to comment on this aspect of the matter as this section was inserted by way of C.P.C. (Amendment) Act, 1976 (Section 79) with effect from 1.2.1977), and the suit in the earlier case filed by the plaintiffs through their guardian and one Manan Singh, their other real brother was major at that time, was dismissed on 1.2.1975. This argument thus is not available to the appellants. It may further be noted that the earlier suit of the plaintiffs was dismissed for default of appearance on 1.2.1975. The application for setting aside the order of dismissal was also declined and appeal against the lower court order refusing to set aside the order of dismissal too was dismissed. Manan Singh while deposing in the lower court had not uttered even a single word regarding negligent conduct of Smt. Bachni, mother of the plaintiffs, who acted as next friend of the plaintiffs. It is an admitted fact that Manan Singh is the real brother of the plaintiff-appellants and he was major at the time of filing the first suit. Manan Singh has not even chosen to file an appeal against the judgment of the learned Sub Judge assailed in appeal in the lower Appellate Court.
14. In the light of my discussion above, I do not find any infirmity or illegality in the findings of both the Courts below. Resultantly, this Regular Second Appeal fails and is dismissed.