JUDGMENT

The suit from which these revision petitions arise was brought by the plaintiff as heir to the estate of one Chinna Nadar alleging inter alia that the defendant his widow was a lunatic at the time the succession opened on his death and she was therefore disqualified under the Hindu Law from getting a widow's estate and that she was still a lunatic at the date of the suit. He therefore proposed that a guardian ad litem should be appointed for her for the suit. She denied the allegations of unsoundness of mind made against her but the Court after holding a preliminary enquiry came to the conclusion that she was of unsound mind and that a guardian was necessary to protect her interests in suit. The matter was brought up to this Court and a Bench of this Court confirmed the order and appointed her brother as her guardian ad litem and the correctness of that order is therefore no longer open to question in these proceedings. It is however rightly conceded by the learned Advocate General for the plaintiff that that finding in no way affects the trial of the issue in the suit whether she was a lunatic when the succession opened.

To prove the defendant's lunacy the plaintiff applied to the Court to pass an order for the personal appearance in Court and the then Subordinate Judge purporting to act under the proviso to O. 3, R. 1 of the Code of Civil Procedure, gave directions to the defendant's guardian to have her produced in Court on the day of hearing. Though several adjournments were given for the purpose and though on one occasion the Vakil appearing for her guardian undertook to produce her, she was not produced in Court, nor did she appear himself. The guardian himself also failed to appear. Thereupon the Subordinate Jude acting under O. 9, R. 12, read with 6(1) decided to proceed with the suit ex parte against the defendant and adjourned the hearing of the suit ex parte to 27th August 1918. In doing so, he passed a long order wherein he considered the question whether the guardian was acting against the interests of the lunatic in not producing her and he thought though there was no evidence for it, that the guardian was acting in what he considered to be or was advised to be in the interests of the defendant; and that therefore there was no ground for removing him and appointing a new guardian.

Before the case came on for hearing ex parte on the adjourned date the defendant's mother put in an affidavit alleging negligence on the part of the defendant's guardian and prayed that he may be removed and that she may be appointed guardian of her daughter and that the order directing the suit to be heard ex parte may be set aside under O. 9, R. 7 and that she may be allowed to defend the suit. This application came on for hearing before a new Subordinate Judge and he has allowed the petitioner's prayers. It is against his orders that the present Revision Petitions are filed under Sect. 115 of the Code of Civil Procedure and Sect. 107 of the Government of India Act.

Civil Revision Petition Nos. 149 and 151 are against the orders removing defendant's brother from guardianship and appointing the mother in his place under O. 32, R. 11 of the Code of Civil Procedure. These orders have not been seriously attacked before me by the learned Advocate General. The present Subordinate Judge has found that the guardian was guilty of neglect of duty in not complying with the order of the Court and thus jeopardising the right of the defendant to defend the suit. Though the previous Subordinate Judge thought there was no reason to remove him, it was open to the present Subordinate Judge to remove him as in his opinion he was guilty of neglect of duty. The power under R. 11 may be exercised at any time during the pendency of the suit. It was argued in the Lower Court that because an order to try the suit ex parte had been passed there was no necessity or power to change the guardian. No authority was cited to support that contention and I think it was rightly disallowed by the Subordinate Judge. Even in an ex parte case the guardian has still to consider whether he should not apply to set aside the order ex parte and to appeal if necessary. If the guardian on record dies it is conceded that the case cannot proceed without a fresh guardian being appointed in whatever stage it may be. That shows the necessity to have a guardian on record throughout the trial to make it a valid trial. There is nothing in R. 11, to make it inapplicable to an ex parte case. The Lower Court's orders in the above matter were therefore right and Civil Revision Petition Nos. 149 and 151 fail.

Civil Revision Petition No. 150 of 1919 is against the order setting aside the order declaring that the trial of the case should proceed against the defendant ex parte, and giving leave to the new guardian to defend the case. As stated above the former order was passed because the then guardian had failed to produce the defendant though ordered to do so and she herself had failed to appear; it was passed under O. 9, R. 12, read with R. 6 (1) of the Code of Civil Procedure. The learned Vakil for the respondent contends that that order itself was not a competent one because R. 12 does not contemplate cases of guardians failing to produce their wards; and he relies on the ruling of Sadasiva Aiyar, J., in Anni Ammal v. Muthukumara Chettiar. The question is one of some difficulty but I am inclined to think that too narrow a construction should not be put upon R. 12 so as to exclude its application to cases where parties are represented by guardians. O. 3, R. 1 proviso is wide enough to enable the Court to direct any party to the suit to appear in person whether he be a minor or a major or of sound or unsound mind and it may be done at any stage of the suit; see Vaiguntathammal v. Velliamman Ammal. There can be no doubt that a defendant is a party to the suit even though he be represented by a guardian on account of minority or of unsoundness of mind. The only way the Court can give an order for his appearance is by directing his guardian to produce him. When such an order is given it seems to me that it is in effect an order to the defendant to appear in person; and the failure to comply with it, will in my opinion enable the court to act under R. 12. The case in Anni Ammal v. Muthukumara Chettiar, above cited was somewhat different, as there the order given was to the minor's next friend for himself to appear in person and the case is thus distinguishable and need express no opinion whether the view taken in it should be followed. I am inclined to think that the first order was therefore a competent order. But whether it be a competent order or not the result of this Civil Revision petition will be the same.

Assuming it to be a competent order 1 consider that it was open to the Court to set it aside under O. 9. R. 7, on the application of the defendant's new guardian. The learned Advocate-General argues that R. 7 does not apply because the C1 in R. 12 which says “He shall be subject to all the provisions of the foregoing rules”, suggests that he is liable to the disabilities imposed but he is not entitled to the remedies provided for, the word used being ‘subject’. I am unable to accept this Argument as it is founded on too narrow a construction of the word ‘subject’. The application of R. 6, carries with it in my view the application of R. 7 and I consider the words ‘all the provisions' in R; 12 show clearly that R. 7 applies.

It was next argued that in a case like the present where the order ex parte was made because the defendant failed to appear when ordered to do so, the defendant himself should appear in person when applying under R. 7 and that the application could not be made by a pleader for him. I did not understand the learned Advocate-General to contend that in cases of minors and of lunatics who are unable to act in Court themselves they should appear in person and not by their guardians. Such an argument would be on the face of it untenable for the very reason that minors and lunatics cannot act for themselves. I cannot agree that parties are not entitled to appear by vakil under R. 7. There is nothing in the wording of the rule excluding appearance by a Vakil as allowed by O. 3, R. 1. There was no order of Court that the defendant should appear in person in the matter of the application; though it was open to the Court to have passed such an order it was not done here. There was therefore nothing to prevent the defendant's guardian filing the application through her Vakil and the Lower Court comitted no error of procedure in allowing the Vakil to file the petition and to appear for him.

I agree however with the learned Advocate-General that the previous non-appearance for which good cause has to be assigned under the rule is the non-appearance which has led to the order under R. 6. cl 1 and that in the present case it is the non-production of the defendant. The learned Subordinate Judge has however considered this question and has held that there was sufficient explanation not only for the old guardian's non-appearance but also for his non-production of the defendant. That a guardian's laches may be sufficient cause for setting aside an ex parte decree or order in the case of minors was laid down in the rulings in Ayyapadi Ramanna Udpa v. Krishna Udpa and in Kishore Pershad v. Hardey Narain; in any case there is no ground for interference in revision with the finding of the Subordinate Judge.

It was finally argued that the Subordinate Judge should have at any rate imposed as a condition for setting aside the order ex parte that the defendant should be produced in Court on a date to be fixed by him. This was the contention most pressed by the learned Advocate-General. It was also argued by him that the present Subordinate Judge had no jurisdiction to go back upon the order for production passed by his predecessor under O. 3, R. 1 proviso as it could only have been done by way of review under O. 47, but that remedy was not available under R. 2 of that order as the Judge who made the order was not the present Subordinate Judge.

It is true that in setting aside the ex parte order under O. 9, R. 7 the Subordinate Judge did not impose any condition as to defendant's appearance in person as he might have done. The matter however was in his discretion and I am not prepared to say that his discretion was exercised so improperly as to amount to a material irregularity of procedure justifying interference of this Court in revision. It is still open to the plaintiff to apply to the Subordinate Judge in the trial of the suit to direct the personal appearance of the defendant in court; all that the Subordinate Judge has refused to do is to impose it as a condition precedent to setting aside the order under R. 7.

I do not consider that any questions of review or of want of jurisdiction arise here. The direction to a party to appear in person decides no rights between the parties. The order is made for the further progress of the suit and to help the Court in its proper disposal. It is an order that can be and is often made by the court suo motu and it is therefore open to the Court to change it whenever it thinks it necessary or expedient to do so in the interests of justice without any application by the parties for review for the purpose. The nature of the order does not get changed because it happens to be passed, as in this case, at the request of one of the parties. Further more the previous order in this case was for appearance on a particular date, and it became spent on the expiry of that date. The Court had then to consider afresh whether the same order should be made for another date, and when it held that no fresh order need issue, it cannot be said to have been acting by way of review in doing so, it was really a fresh disposal of the question. If one party desires the presence of the opposite party in Court for the purpose of examining him as a witness, as the plaintiff in the present case seems to desire the procedure which he has a right to adopt is the one under O. 16 of the Code of Civil Procedure, but a direction under O. 3, R. 1 proviso is not one which he had a right to claim.

I am therefore of opinion that the Subordinate Judge has jurisdiction in making the orders in question here and that he did not act ‘illegally or with any material irregularity’ in doing so; and there is thus no ground for interference under Sect. 115 of the Civil Procedure Code or Sect. 107 of the Government of India Act.

All the three revision petitions are therefore dismissed with costs with Vakil's fee in Civil Revision Petition No. 150 of 1919 only.

S.SPetition dismissed.