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  • Guha
  • Bartley, JJ.
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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The plaintiff-appellant originally instituted Title Suit No. 2149 of 1909 in the Court of the Munsif at Sunamgunj, Sylhet, on 16 July 1909, seeking possession, a declaration of title, and incidental reliefs against nineteen named defendants. To meet an objection of defect of parties, 52 more persons were added; among those subsequently made parties, defendants 41 to 43 were minors when added. The mother of these three minors was proposed as their guardian and an order dated 11 June 1910 appointed the proposed guardian to conduct the case (the order records that no objection petition had been filed and that service of notice had been pressed on 16 April 1910).

None of the defendants appeared and the trial Court decreed the suit in the plaintiff's favour. That decree was affirmed by the High Court on 23 April 1914 on a second appeal by some defendants. In 1918 defendants 41 to 43 brought Title Suit No. 47 of 1918 (registered subsequently as Title Suit No. 12 of 1919) seeking a declaration that the 1909 decree was invalid and inoperative against them on the ground that no proper guardian had been appointed. That suit succeeded: the Court held the mother had not consented to her appointment and that express consent was required for a guardian-ad-litem; the decree in the 1909 suit was declared null and void and inoperative as to defendants 41 to 43 by a decision dated 20 September 1919.

In January 1928 the original plaintiff applied in the Court of the Munsif at Sunamgunj for the 1909 suit to be proceeded with as against defendants 41 to 43, and the application was allowed — the suit was revived. After revival, the suit against defendants 41 to 43 was decreed in part on contest by the trial Court (the decree of the trial Court is dated in the opinion as 16th December 1981) and the Subordinate Judge (lower appellate Court) affirmed that decree with certain modifications on 20th December 1932. On appeal by defendants 41 to 43 to this Court, R.C. Mitter, J., reversed the decision of the lower appellate Court and discharged the decree directed against defendants 41 to 43 on the ground that the suit of revival was without jurisdiction; Mitter, J., affirmed the lower appellate Court on other merits and limitation questions.

The present appeal before the Court was brought by the plaintiff-appellant challenging Mitter, J.'s view on revival and party status of the minors. The Court ultimately reversed Mitter, J.'s jurisdictional conclusion, restored the Subordinate Judge's decision and awarded costs to the plaintiffs-appellants against defendants 41 to 43; cross-objections were dismissed.

Legal Issues Presented

  1. Whether a decree that has been declared null and void and inoperative in subsequent proceedings (on the ground of defective appointment of a guardian-ad-litem) is in substance equivalent to a decree that has been "set aside" and therefore permits revival of the original suit so that it may be proceeded with against the affected parties.
  2. Whether defendants 41 to 43 (minors at the time the suit was instituted) were "parties" to the original suit in law such that the suit could be revived later against them after the decree was declared inoperative.

Arguments of the Parties

Appellant's Arguments

  • The learned Judge of this Court (R.C. Mitter, J.) was incorrect in holding that the established rule permitting revival of a suit after a decree is set aside does not apply where the decree has been declared null and void and inoperative on the ground that it was passed against a minor represented by a guardian-ad-litem improperly appointed.
  • The Court had appointed a guardian-ad-litem without the express consent required by the relevant rule (O. 32, R. 4(3) of the CPC), because the mother proposed as guardian did not expressly consent although she had not objected. A decree followed from that defective appointment; defendants 41 to 43 sought a declaration of ineffectiveness and obtained it. The appellant argued that the absence of a prayer to "set aside" rather than to "declare inoperative" should not make any substantive difference — both produce the same effect practically — and therefore revival should have been permitted.
  • The appellant also urged that defendants 41 to 43 were parties to the original suit when it was instituted (they were named as defendants) and that it would be contrary to justice to treat them as never parties and refuse revival on that ground unless prejudice were shown.

Respondents' Arguments

The opinion does not contain a detailed account of the respondents' legal arguments as expounded in this Court. The judgment records the view of R.C. Mitter, J., that the minors were not parties in law to the suit at the time the decree was passed, and that for that reason the suit could not be revived against them; however the detailed content of respondents' submissions in this Court is not set out in the provided opinion.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
39 All 8 Authority for the proposition that where a decree is set aside in subsequent proceedings, the original suit is revived and must be proceeded with. The Court followed the position indicated in 39 All 8 and applied it to hold that there is no substantive distinction between a decree being "set aside" and being declared "null and void and inoperative" for the purpose of permitting revival of the original suit.
36 IA 1682 Observations by the Judicial Committee bearing on cases where a guardian appointed by the Court had an interest adverse to the minor, supporting the position that in certain inherent defects the minor may be treated as never having been a party. The Court distinguished 36 IA 1682 as inapplicable to the present case because the defect in appointment of guardian was a formal one (lack of express consent) and not an inherent conflict of interest; therefore the principle there cited did not prevent revival in this case.

Court's Reasoning and Analysis

The Court addressed the appellant's grounds in sequence.

  1. On the first issue (declaration of a decree as null and void vs. setting aside a decree), the Court reasoned that there is no substantive or principled difference between a decree being "set aside" in a subsequent proceeding and being declared "null and void and inoperative" in a subsequent proceeding where the defect arose from a procedure found to be defective. The Court noted that authorities of the Court supported the proposition that where a decree is set aside by subsequent proceedings the original suit is revived and must be proceeded with. The Court found no decided case distinguishing the two outcomes in substance and rejected any overly technical distinction that would impede justice. Accordingly the Court held that a decree declared inoperative in subsequent proceedings has the same effect, for revival purposes, as a decree set aside.
  2. On the second issue (whether defendants 41 to 43 were parties to the suit in law), the Court observed that the suit was instituted against those minors by name and that the Court had the duty, under O. 32, R. 3 of the CPC, to appoint a guardian for the suit. Although the appointment made was procedurally defective (because the mother's express consent had not been recorded, contrary to O. 32, R. 4(3) of the CPC), the Court reasoned that the defect was formal rather than inerent, and that the minors should not be treated as never having been parties where the institution of the suit itself was complete. The Court relied on the reasoning in 39 All 8 and distinguished cases such as those before the Judicial Committee where the guardian had an adverse interest (36 IA 1682). The Court concluded that the proper course was to allow revival so as to restore the minors to the position they occupied when the suit was filed.
  3. Applying those principles to the facts, the Court concluded that the revival of the suit in 1928 was proper, that defendants 41 to 43 (who by then had attained majority) defended the revived suit, and that the factual findings substantially in favour of the plaintiff-appellant (as affirmed by a learned Judge of this Court on appeal) were to stand. For these reasons the Court reversed R.C. Mitter, J.'s conclusion on the question of jurisdiction to revive the suit and restored the decision and decree of the Subordinate Judge (the lower appellate Court).

Holding and Implications

Holding: APPEAL ACCEPTED; the judgment of R.C. Mitter, J. on the question of the Court's jurisdiction to revive the suit is reversed and the decision and decree of the Subordinate Judge (the lower appellate Court) are restored.

Immediate implications and effect on the parties:

  • The suit as revived in January 1928 was held to have been rightly revived and the subsequent proceedings and decree in favour of the plaintiff-appellant are restored.
  • The plaintiffs-appellants are awarded their costs in all Courts against defendants 41 to 43 (the respondents in this appeal).
  • The cross-objections filed in this Court are dismissed; there is no order as to costs in the cross-objections.

Broader implications: The opinion reasons that a decree declared "null and void and inoperative" because of a defective procedure in appointment of a guardian-ad-litem is, for the purpose of revival, substantively equivalent to a decree "set aside" in subsequent proceedings; the Court expressly follows the authority in 39 All 8 and distinguishes 36 IA 1682. The opinion does not purport to announce a novel legal principle beyond applying these authorities to the facts; it focuses on the direct effect of restoration of the lower appellate Court's decision and the award of costs.

R.W/R.K

Disposition: Appeal accepted.

Show full summary ...

    Monmohini Das Purkayastha v. Behari Shaha

    1. This is an appeal from the decision of our learned brother R.C Mitter, J. The plaintiff appellant instituted a suit, title Suit No. 2149 of 1909, in the Court of the Munsif at Sunamgunj in the District of Sylhet, for possession, on declaration of his title, and there were other incidental and consequential reliefs prayed in the suit, which was filed in Court on 16th July 1909, against nineteen persons impleaded as defendants; to meet the objection on the score of defect of parties, raised by the defendants, 52 more persons were added as defendants. Of these defendants subsequently made parties to the suit, defendants 41 to 43 were minors at the time when they were made defendants to the suit; the mother of these three defendants was proposed as their guardian and the order of the Court relating to the matter of appointment of guardian of defendants 41 to 43, passed on 11th June 1910 was this:

    Service of notice pressed on 16th April 1910. No objection petition filed yet. The proposed guardian be appointed guardian for the minor defendants to conduct the case.

    2. There was no appearance by any of the defendants in the suit and the suit was decreed in favour of the plaintiff. The decree of the Court of first instance was ultimately affirmed by this Court on 23rd April 1914, on a second appeal preferred by some of the defendants in the suit. In the year 1918, defendants 41 to 43 in the suit instituted a suit, Title Suit No. 47 of 1918 subsequently registered Title Suit No. 12 of 1919, for a declaration that the decree passed against them in Title Suit No. 2149 of 1909 was invalid and inoperative against them, on the ground that there was no proper appointment of a guardian to represent them in the suit. The aforesaid suit No. 47 of 1918, was decided in favour of defendants 41 to 43, the plaintiffs in that suit, on the ground that the mother proposed as guardian had not consented to her appointment, as the guardian-ad-litem of her minor sons, and that it was settled law that no person could be appointed guardian-ad-litem of a minor without express consent.

    3. It was held that the decree passed in the suit being ineffectual and inoperative against defendants 41 to 43, they were not bound by it. The decree passed in Title Suit No. 2149 of 1909 was declared null and void and inoperative against these defendants by the decision and decree passed by the Additional Subordinate Judge, Sylhet, on 20th September 1919. Thereafter, on the January 1928, the plaintiff filed an application in the Court of the Munsif at Sunamgunj, praying that the Title Suit No. 2149 of 1909, be proceeded with, as against defendants 41 to 43, and the application was allowed, the suit being revived.

    4. The result of the hearing of the suit after its revival was that the suit against defendants 41 to 43 was decreed in part on contest by the said defendants. The decree passed by the trial Court on 16th December 1981 was affirmed by the Subordinate Judge, in the lower appellate Court, on 20th December 1932, with certain modification, as mentioned in the ordering portion of the judgment of the Subordinate Judge. On appeal by defendants 41 to 43, to this Court, the decision of the lower appellate Court was reversed, and the decree passed by the lower Court directed against defendants 41 to 43 were discharged by our learned brother R.C Mitter, J., on the ground that the suit against the order of revival of the suit against defendants 41 to 43 was without jurisdiction. It may be noticed in this connexion that the decision of Mitter, J., is in favour of affirming the decision of the lower appellate Court on the other questions relating to the merits of the case before us and the question of limitation arising in the same.

    5. In the appeal before us preferred by the plaintiff, the first ground urged was that the learned Judge of this Court was not right in the view taken by him that the rule was well settled that if a decree passed against a person was set aside by a decree passed in a suit brought to set it aside, the original suit was revived and must be proceeded with, could not be extended or applied to a case where the decree passed is null and void on the ground that it was passed against the minor who was represented by a guardian-ad-litem. In the case before us the Court made an order appointing a guardian-ad-litem without express consent, there having been no objection to the proposal for appointment of guardian; this was not strictly in accordance with law, in view of the provisions introduced soma time before the order in question was made in the year 1910, that “no person shall without his consent be appointed guardian for the suit” [O. 32, R. 4(3) of the CPC]. A decree followed, after the order defective under the existing law was made. Defendants 41 to 43 instituted a suit for avoiding the decree, and relief was given to them in terms of the prayer made by them. The decree passed in Title Suit No. 2149 of 1909 was declared null and void and inoperative as against them, on the finding that they were not bound by it. The expression that the decree was set aside was not used in view of the position that defendants 41 to 43 prayed for a declaration only and not for a consequential, relief, which they could very well have done in the circumstances of the case before us. The effect of the decree of the suit of 1918, brought by defendants 41 to 43, was that there was a declaration that the procedure adopted in the matter of appointment of guardian was defective and the decree passed in suit was inoperative so far as those defendants were concerned.

    6. There is no difference in substance as between declaration that a decree is null and void and inoperative as such and setting aside the same in a case in which the only prayer was for a declaration that a decree was inoperative. This distinction was far too technical to be appreciated properly; and it could not, in our judgment, be allowed to stand in the way of justice being done in a case. The authority of decisions of this Court are, as has been pointed out by our learned brother, in favour of the position that the original suit is revived, and must be proceeded with, in the case of a decree being set aside in a suit brought for the purpose of setting aside the same; and no authority of any decided case was pointed out to us that there in any difference in substance as between a decree declaring a decree null and void and inoperative as such and a decree setting aside a decree previously passed on the ground that a procedure followed was defective under the law. In our judgment, there is no difference in substance or principle between a case in which a decree passed against a person is set aside by a subsequent proceeding and a case in which the decree is declared null and void and inoperative in subsequent proceedings; and the suit in which the inoperative decree was passed can be revived against a defendant in whose favour such a decree is passed in a subsequent proceeding.

    7. The question next raised in support of the appeal was, whether Mitter, J., was right in his decision that defendants 41 to 43 were not parties to the suit in the eye of the law, and the suit could not for that reason be revived later on, against persons who were not parties to it at all, at the time when the decree was passed in it. So far as this question was concerned, it would appear that Mitter, J., has dissented from the view taken not only by the Courts below, but from the decision in 39 All 81. It appears to us however that the position indicated by the learned Judges of the Allahabad High Court is sound; and we see no difficulty in giving effect to the same in the case before us. The suit was instituted and could be instituted against defendants 41 to 43 by name. The institution of the suit was complete and was not defective under the law, and it was the duty of the Court to appoint a proper person to be guardian for the suit for the minors (O. 32, R. 3 of the CPC). The Court did appoint such a guardian; but the procedure followed was defective under the law; and a decree followed, to avoid the effect while a suit was instituted by defendants 41 to 43. The decree was ultimately declared null and void and inoperative, so far as the minor defendants 41 to 43 were concerned. The Court which followed a procedure held to be defective in a subsequent proceeding, and whose duty it was to see that a proper guardian was appointed had jurisdiction to revive the suit so as to restore the minors to the same position in which they were on the date on which the suit was filed against them. This is the position indicated in the judgment in 39 All 8, referred to above; and wo unhesitatingly follow the same. It would not be right to hold and it would amount to denial of justice in the case before us, if we hold that defendants 41 to 43 were not to be regarded as parties to the suit when the suit was instituted by the plaintiff, and hold further that the suit could not be revived at the instance of the plaintiff after the decree that was passed against the defendant was declared to be null and void and inoperative as against them for the reason of a defect of procedure followed by the Court, in the matter of appointment of their guardian for the suit. If any case of prejudice so far as defendants 41 to 43 were concerned were made out, the position might have been different.

    8. We are not unmindful of the decision of their Lordships of she Judicial Committee of the Privy Council, and of the decision of Courts in this country, that in certain cases and in certain circumstances it has to be held that a minor not properly represented by a guardian must be treated as a person who was never a party to the suit. The observations of the Judicial Committee in 36 IA 1682, related to a case in which a guardian appointed by the Court had an interest adverse to that of the minor in question; and those observations in support of the position that in the case of an inherent defect in the matter of appointment of guardian, the minor should not be deemed to be party to a suit, could not be held applicable to a case like the one before us, in which the defect in the appointment of guardian was purely a formal one, arising out of the position that the mother proposed as guardian not having objected to her appointment, was taken to have consented to her appointment. The fact remains that in the suit not only the guardian of the minor defendants 41 to 43, appointed by the Court after an erroneous procedure was followed, but none of the defendants in the suit appeared to contest the same.

    9. The conclusion we have arrived at, as indicated above, is that the suit was rightly revived in the year 1928, on the application of the plaintiff appellant before us. Defendants 41 to 43 who had attained majority by the time that the suit was revived defended the suit, and the decision of the final Court of fact substantially in favour of the plaintiff-appellant, has been affirmed by the learned Judge of this Court, on appeal. The decision of the learned Judge, R.C Mitter, on the question of the Court's jurisdiction to revive the suit being reversed by us, the decision and decree of the Subordinate Judge in the Court of appeal below are restored. The plaintiffs-appellants in this appeal will get their costs in all the Courts from defendants 41 to 43, respondents in the appeal before us. The cross-objections filed in this Court are dismissed. There is no order as to costs in the cross objections.

    R.W/R.K

    10. Appeal accepted.

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    Comments

    Monmohini Das Purkayastha v. Behari Shaha
    (Mar 25, 1936)