Summary
The Court upheld the High Court’s use of Article 227 to set aside an ex parte specific-performance decree where the trial court had failed properly to appoint a guardian for a minor defendant under the applicable Madras rules. That defect could be examined in a revision arising from refusal to condone delay, even without a specific plea. Prejudice to the minor had also been found. The defendants’ negligence did not excuse the court’s failure to protect the minor.
Issues
- Whether the High Court could examine the failure to appoint a minor’s guardian and set aside the decree under Article 227 in proceedings arising from refusal to condone delay.
- Whether the applicable guardian-appointment requirements had been satisfied.
Provisions considered
- Order XXXII Rule 3, as applicable under the Madras amendment, Code of Civil Procedure, 1908The trial court had to appoint a suitable guardian through the prescribed procedure; merely closing the application after recording service and a vakalat did not satisfy it. (¶¶ 5, 14, 15, 16, 17, 18, 19, 20, 21)
- Article 227, Constitution of IndiaThe High Court’s supervisory power is additional to and wider than Section 115 revision and could be used to correct the defect affecting the minor. (¶¶ 1, 10, 21, 22, 23, 33)
- Order XXXII Rule 3A, Code of Civil Procedure, 1908The adverse-interest rule’s prejudice requirement was distinguished from failure to appoint a guardian; no general resolution of the nullity question was necessary because prejudice had been found here. (¶¶ 23, 24, 25)
Held
- The defendants had been grossly negligent, but the court could not neglect its own duty towards a minor litigant. The applicable Madras amendment imposed detailed requirements concerning suitability, affidavit particulars, notice, consent and actual appointment which were not met by simply closing the pending application. (¶¶ 5, 14, 15, 16, 17, 18, 19, 20, 21)
- The High Court could call for the original records and examine compliance even though the revision concerned delay condonation and no specific guardian-related contention had been raised. Article 227 supported setting aside the ex parte decree; the distinct limits on Article 226 did not defeat that supervisory power. (¶¶ 21, 22)
- The Court did not need to decide whether every failure properly to appoint a guardian renders a decree void regardless of prejudice: the High Court had found prejudice in this case. Order XXXII Rule 3A specifically addresses an appointed representative’s adverse interest, a different category. (¶¶ 23, 24, 25)
- The plaintiffs could not contradict their own pleading that the defendant was a minor and their own application to appoint his guardian. The attempt to limit relief only to that defendant was also rejected in the circumstances of the decree’s nullity. No ground for interference with the High Court’s conditional order was established. (¶¶ 26, 27, 28, 29, 30, 31, 32, 33)
Result
Special leave petition dismissed; the High Court’s conditional setting aside of the ex parte decree remained in force.