Listen to this articleK P Natarajan and others V. Muthalammal and
others
Special Leave
Petition (C) No. 2492 of 2021 decided on 16 July 2021
BENCH: V Ramasubramanian,
Indira Banerjee. JJ
FACTS-
The
recent petition
is filed by the petitioner against the High Court judgment at the judicature of
Madras, which had set aside the ex-parte decree passed against a minor on the
ground that he was not represented by a guardian appointed in terms of procedure
contemplated under Order XXXII, Rule 3 of the Code of Civil Procedure The High
Court was dealing with a revision petition filed under Section 115 CPC against
the refusal of the trial court to set-aside the ex-parte decree passed
in a suit seeking specific performance of a sale agreement. The trial court
dismissed the application to set aside the ex-parte decree on the ground of
unexplained delay of 862 days in preferring the application. One of the
defendants in the suit was a minor. While considering the revision, the
High Court had summoned the records to ascertain if the guardian was duly
appointed as per procedure. On finding that there was no proper appointment of
guardian, the high Court set aside the ex-parte decree as a nullity, without
going into the question of adequacy of reasons for delay.
ISSUES:
1.
Should not High Court to have set aside an
exparte decree, in a revision petition arising out of an application under
section 5 of the Limitation Act, 1963?
Held- The Supreme court
held that the powers of High Court under Article 227 are wider in nature and when
the High Court finds that the trial courts have 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 grounds of
technicalities, likewise mentioned under the provision (section 5) of the
Limitation Act. In furtherance Supreme Court observed that the court cannot be
negligent even if the party was negligent and the court has to ensure that
proper procedure was followed. The manner in which the trial court disposed of
the application under Order XXXII, Rule 3, is without doubt, improper and
cannot at all be sustained, especially in the teeth of the Madras Amendment.
2.
Could not High Court have set aside the decree
invoking Article 227 while hearing a revision petition under section 115 of
Civil Procedure Code?
Held- The Supreme Court
refused to accept the argument that the High Court could not have set aside the
decree invoking Article 227 while hearing a revision application under section
115, CPC. The judgment states “It is too 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 Devi Rai vs. Ram Chander Rai and
others, this 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 Radhe
shyam and others vs. Chhabi Nath and others, the three member bench
even while overruling the judgment given in Surya Devi Rai on the question of jurisdiction
under Article 226, pointed out that the jurisdiction under Article 227 is
distinguishable. Therefore, we do not agree with the contention that the High
Court committed an error of jurisdiction in invoking Article 227 and setting
aside the exparte decree. ”
The court also held that the
failure to appoint guardian ipso facto will result in prejudice to the minor
and it need not be specially established. Further, the Supreme Court agreed
with the High Court’s view that the decree as a whole required to be set aside
and not merely against the minor defendant. Honorable Court says “we find no illegality in the order of the
High Court warranting our interference under Article 136. Hence, this Special
Leave Petition is dismissed.”
CASES REFERRED: Radhe shyam and others vs. Chhabi Nath and others, (2015) 5 SCC 423; Surya Devi Rai vs. Ram Chander Rai and others, 2003 (6) SCC 675