K.P. NATARAJAN & ANR. VS. MUTHALAMMAL & ORS. [SPECIAL LEAVE PETITION (C) NO. 2492 OF 2021]

V. RAMASUBRAMANIAN, J.

16TH JULY 2021

LAW POINT- The failure to appoint guardian ipso facto, will result in prejudice to the minor and it need not be specially established.

FACTS

 In a Civil Revision Petition filed under Section 115 of the Code of Civil Procedure, 1908 (for short “the Code”), challenging an order of the trial Court refusing to condone the delay of 862 days in seeking to set aside an ex-parte decree for specific performance, the High Court found that the ex-parte decree was a nullity, as it was passed against a minor without the minor being represented by a guardian duly appointed in terms of the procedure contemplated under Order XXXII, Rule 3 of the Code.

Therefore, the High Court, exercising its power of superintendence under Article 227 of the Constitution, set aside the ex-parte decree itself on condition that the petitioners before the High Court/defendants pay a sum of Rs.2,50,000/, representing the amount already spent by the decree holders in purchasing stamp paper etc. Aggrieved by the said order of the High Court, the decree holders are before the Apex Court through special leave petition

GROUNDS OF ATTACK BY PETITIONERS

(i) The High Court ought not to have set aside an ex-parte decree, in a revision petition arising out of an application under Section 5 of the Limitation Act, 1963;

(ii) The Court was not even entitled to invoke equity in favour of the respondents who were grossly negligent, first in defending the suit, next in defending the executing proceedings and then in seeking to set aside the ex-parte decree after nearly a year of seeking to set aside the ex-parte order passed in the Execution Petition

(iii) It was not even one of the grounds raised or points argued by the respondents herein in their revision petition before the High Court either that the procedure prescribed under Order XXXII, Rule 3 of the Code was not followed or that a grave prejudice or injustice has been caused to the defendant/minor, on account of the failure, if any, on the part of the trial Court.

GROUNDS OF ATTACK BY RESPONDENTS

The revisional jurisdiction of the High Court under Article 227 are wider in nature and that when the High Court finds that the trial Court has not taken care of the interest of the minor who was a party to the proceeding, by following the procedure prescribed by law, the High Court cannot shut its eyes on the basis of technicalities.

OBSERVATIONS BY HON’BLE SUPREME COURT

ORDER XXXII RULE 3

Order XXXII, Rule 3, is found in the First Schedule to the Code. Under Section 121 of the Code, the Rules in the First Schedule shall have effect as if enacted in the body of the Code until annulled or altered in accordance with the provisions of Part X, which comprises of Sections 121 to 131. The High Courts are empowered under Section 122 of the Code to annul/alter or add to all or any of the Rules in the First Schedule, for regulating the procedure of the civil courts subject to their superintendence. In exercise of such a power, the High Court of Judicature at Madras has made Rule 3 of Order XXXII of the Code, much more elaborate and rigorous than how the Rule was originally framed.

More importantly subrules (4), (5), (6) and a part of subrule (7) of Rule 3 of Order XXXII of the ‘applicable rules’ prescribe certain additional requirements which are as follows:

(i) When an application for the appointment of a guardian is by the plaintiff, it shall set forth in the order of their suitability, a list of persons with their full addresses for service of notice, who are competent and qualified to act as guardian for the minor defendant;

(ii) The application for appointment of a guardian should be supported by an affidavit, not merely verifying (as in the Central Act) the fact that the proposed guardian has no interest in the matters in controversy adverse to that of the minor, but also stating additional particulars including the name and address of the defacto guardian and the names and addresses of other suitable persons, whenever a natural or defacto guardian is not permitted to act.

The power of the High Court to call for the records and examine the same, in a revision under Section 115(1) of the Code is not and cannot be doubted or questioned by the petitioners.

It is true that the learned Judge of High Court was dealing only with a revision petition arising out of an Order dismissing a petition under Section 5 of the Limitation Act, 1963. But it does not take away or curtail the jurisdiction of the High Court to look into the records with particular reference to an important rule of procedure, especially when the same relates to something concerning persons under disability.

Admittedly, the learned Judge summoned the records from the trial Court after entertaining a doubt about the procedure followed by the trial Court in this case and found as a matter of fact that the trial Court failed to appoint a guardian for the third defendant as required by Order XXXII, Rule 3

There is no illegality in the action of the High Court in summoning the original records in the suit and finding out whether or not a guardian of a minor defendant was appointed properly in accordance with the procedure prescribed in Order XXXII, Rule 3, even in the absence of a specific contention being raised by the petitioners.

POWER OF HIGH COURT TO SET ASIDE DECREE UNDER ARTICLE 227

It is well settled that the powers of the High Court under Article 227 are in addition to and wider than the powers under Section 115 of the Code.

In Surya Dev Rai vs. Ram Chander Rai and Others, the Court went as far as to hold that even certiorari under Article 226 can be issued for correcting gross errors of jurisdiction of a subordinate Court.

But the correctness of the said view in so far as it related to Article 226, was doubted by another Bench, which resulted in a reference to a three member Bench.

In Radhey Shyam & Anr. vs. Chhabi Nath & Others, a three member bench, even while overruling Surya Dev Rai (supra) on the question of jurisdiction under Article 226, pointed out that the jurisdiction under Article 227 is distinguishable.

Therefore, the contention that in a revision arising out of the dismissal of a petition under Section 5 of the Limitation Act, 1963, the High Court cannot set aside the ex[1]parte decree itself, by invoking the power under Article 227, is unsustainable

PREJUDICE TO MINOR UNDER RULE

3A Rule 3A was inserted in Order XXXII by CPC Amendment Act 104 of 1976. It is this Rule that introduced for the first time into the Code, the question of prejudice to the minor. But this Rule 3A applies only to cases where the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor. Parliament chose to introduce the element of prejudice, specifically in relation to one category of cases under Order XXXII, Rule 3A.

The case on hand does not fall under that category. The learned Judge found that in this case, the minor was in fact prejudiced.

DECISION

There is no illegality in the order of the High Court warranting interference under Article 136. Hence, the Special Leave Petition is dismissed.