Ramkhelawan Singh vs Ganga Prosad on 19 August, 1937

Patna High Court
Ramkhelawan Singh vs Ganga Prosad on 19 August, 1937
Equivalent citations: 172 Ind Cas 513
Author: Rowland
Bench: Rowland


ORDER

Rowland, J.

1. The petitioner is the defendant in money suit. At the time of its institution, he was a minor and his mother was appointed as guardian ad litem. She appeared and acted as such and filed a written statement on his behalf. When the suit was nearly ready for hearing, the defendant attained majority and informed the Court of the fact. The Court permitted him to appear and defend the suit as major. He then tendered a fresh written statement on February 3,1937, apparently intended to supersede the written statement filed by his guardian as far back as January 3, 1936. The Court declined to accept this written statement at that late stage. About six: weeks later the defendant followed it up with a petition asserting that the previous written statement was a forgery got up by dismissed servants of the defendant. The Court rejected this version thinking that if it had been the fact the defendant would have disclosed it at the time of filing his fresh written statement.

2. In revision it is contended that a minor defendant on attaining majority is entitled as of right to amend any pleading that may have been put in on his behalf. Mr. Mahabir Prasad for the petitioner has referred to Order XXXII, Rules 12-14, Civil Procedure Code, and pointed out that a plaintiff or applicant, on attaining majority, is given by the statute an option to abandon the suit or to proceed with it, and he says it would be anomalous if some similar liberty to ratify or to repudiate the act of his guardian on his behalf were not given to a defendant. Now it is not difficult to think of reasons why the plaintiff suing through a next friend is put in a different position from a defendant against whom a suit is brought through a guardian ad litem. The next friend of a minor plaintiff, unless he happens to be a certificated guardian under the Guardians and Wards Act or the Court of Wards Act, takes upon himself the responsibility of instituting a suit in the name and for the benefit of the minor. But a guardian ad litem for a minor defendant is a person appointed to act as such by the Court. Therefore, Mr. Mahabir Prasad’s argument of the supposed anomaly does not impress me.

3. Then reference was made to English cases and text books. But what is there said has reference to a different procedure from that followed in India. In England, it is an established rule that an infant is not bound by decree of a Court of Equity but must have a reasonable time after he comes of age to show cause against it : Effingham v. Napier (1727) 4 Bro. PC 340 : 2 ER 230. The procedure appears to be based on the legal fiction that a decree obtained against a minor is a decree obtained against an absent person. Therefore, when he is capable of appearing and pleading His own cause, he is to be given an opportunity of moving to have the decree set aside and the case re-heard. In conformity with this rule it was held in Kelsall v. Kelsall (1831) 2 My. & K 409 : 39 ER 1000 that where a decree has been made against an infant defendant, the general rule is that such defendant on coming of age has the privilege of putting in a new answer stating a different case and going into evidence in support of that case. The Lord Chancellor found this privilege to exist on the basis of old practice and precedent. The Lord Chancellor said:

I know it to be the opinion of some eminent practitioners that the right does not exist, and that they have been in the habit of advising parties appearing for infants to proceed as if no such privilege existed. It may further be safely said that, if it does exist, no privilege can be more fit to be taken away; for it is at once hurtful to others and in the majority of cases would prove, if resorted to, injurious to the infants themselves.

4. In India we have to see what rules have been laid down by the Code of Civil Procedure. But the observations I have quoted from Kelsall v. Kelsall (1831) 2 My. & K 409 : 39 ER 1000 are enough to indicate that if the privilege claimed for the infant in this case is not found to have any basis or ground in the Statute, it is not a privilege of a nature that one would be anxious to create in favour of minors on general principles of equity and good conscience. Now it seems to me that except for the special provisions in Order XXXII, Rules 12-14, which really govern the relations between a minor and his next friend, and the redress which the former can get from the latter in case he has recklessly embarked on a wasteful litigation, the Code does not make any difference between minors and others so far as the general rules of pleadings are concerned. A minor must be properly represented by a guardian and if there be no representation, the decree may be void or voidable. But if the minor is properly represented, then all proceedings in the suit are as good and as binding on the minor as if he had been a major and the proceedings taken in his presence. Now the Code has laid down rules regarding the pleadings both generally and with special reference to the plaintiff and defendant respectively. Order VIII, Rule 1, provides for the presentation of a written statement of the defence by the defendant and questions of fact which are to be raised as issues are specifically to be pleaded (O. VIII, Rule 2) and allegations in the plaint which are denied must be denied specifically and not generally or evasively (rr. 3 and 4), and so on. Rule 9 says that:

No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off shall be presented except by the leave of the Court and upon such terms as the Court thinks fit but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.

5. In other cases it would appear that Order VI, Rule 7, applies:

No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

6. In my opinion these provisions of the Code apply to minors and do not cease to apply to a minor merely because during the pendency of the suit he comes of age. I am fortified in this opinion by the decision in Venkataswami Naidu v. Uppilipalayam Vamana Vilasa Nidhi, Ltd. AIR 1935 Mad. 117 : 153 Ind. Cas. 453 : 68 MLJ 155 : (1934) MWN 1386 : 7 RM 355 : 41 LW 640 where Walsh, J., said:

In India we are governed by the Civil Procedure Code and if this has not made special rules in the case of minor defendants, it seems to me that they all fall under the general provisions Order VIII, Rule 9, in the matter of putting in additional written statements. Under Order VIII, Rule 9, such an additional written statement otherwise than by way of defence to a set-off shall only be presented by leave of the Court and on such terms as the Court thinks fit. Consequently the refusal of the Court to grant permission, except in the one instance named, which does not apply to the present case, would not be a matter with which this Court could interfere in revision.

7. The application fails and is dismissed with costs. Hearing-fee two gold mohurs.

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