Citations: K.P. Nataranjan Vs Muthalammal, 2021 Latest Caselaw 275 SC
Date of Judgement: 16/07/2021.
Equivalent Citations: MANU/SC/0452/2021.
Case No.: S.L.P (C) no. 2492 of 2021
Case Type: Special Leave Petition
Petitioner(s): K.P. Nataranjan & Anr.
Respondent(s): Muthalammal & Ors.
Bench: Hon’ble Justice Ms. Indira Banerjee, Hon’ble Justice V. Ramasubramanian
Court: Supreme Court of India
Statutes Referred:
- Constitution of India,1949; Article 136, 226 & 227
- Code of Civil Procedure, 1908; Section 115; Order XXXII, Rule 3
- Central Excise Act, 1994.
- The Limitation Act, 1963; Section 5
Cases Referred:
- Surya Dev Rai Vs Ram Chander Rai & Ors. (2003) 6 SCC 675;
- Radhey Shyam & Anr. Vs Chhabi Nath & Others (2015) 5 SCC 423;
- Lanka Sanyasi Vs Lanka Yerran Naidu 1929 Law Weekly 455;
- Ouseph Joseph Vs Thoma Eathamma AIR 1956 TC 26;
- Anandram and another Vs Madholal and Others AIR 1960 Raj 189;
- Rangammal Vs Minor Appasami 85 Law Weekly 574
Facts:
- Petitioners made an application in the Trial Court filing a suit O.S. No.264 of 2013 for specific performance of an agreement of sale dated 25.04.2011.
- Accordingly, the respondents were served with the summons, but having appeared through counsel they remained ex parte. Consequently, on 8.04.2015 the suit was adjudged ex parte by the trial court.
- It is also relevant to note that the petitioners proposed for an alternate relief in case the specific performance cannot be granted, to issue a decree for refund of money which is to be paid at the interest rate of 18% per annum.
- However, the proposal was denied by the Court without any specifications, issuing relief for specific performance.
- The third respondent, in this case, was a minor, S Aravindarajan (aged 16 years), son of M. Sampath Kumar, and is represented by his father. So, an application I.A No.981 of 2013 was filed by the Petitioners under Order XXXII, Rule 3 of the Code of Civil Procedure for appointing the Second respondent i.e. the minor’s father as his guardian.
- After making an application, a notice about the same was served by the Trial Court to the second respondent (herein the father of the minor) on 23.03.2014. Petitioners filed E.P No.33 of 2015 in pursuance of execution of the decree.
- Two dates in December 2015 and several dates in 2016 were given for hearings. However, ex parte decree was set on 18.10.2016 and the petition was granted.
- In response to this, the respondents made an application to set aside the order in the Execution Petition.
- Meanwhile, the Court executed the sale deed on 4.01.2017 after the submission of non-judicial stamp papers in the amount of Rs. 1,98,000 by the petitioners.
- Thereafter, an application I. A No.142 of 2017 on 19.09 2017 was made by the Respondents requesting condonation of delay of 862 days under Section 5 of the Limitation Act and for setting aside the ex-parte order.
- On 28.11.2017, the Trial Court rejected the application so filed on the ground that there was no reasonable, satisfactory or proper explanation by the respondent for the delay.
- Moreover, the written statements were not made within the time limit and after the execution of the sale deed, there is no scope for the respondents in seeking condonation after this inordinate delay.
- Challenging the order of the Trial Court, respondents filed a petition under Section 115 of the Code of Civil Procedure, seeking to set aside the ex-parte decree passed for the specific performance of the sale deed.
- Original records were examined and the High Court came to an assessment that I. A No.981 of 2013 filed for the appointment of a guardian, prescribed in Order XXXII, Rule 3 of the code, was not duly dealt with.
- Thereafter, the High Court exercising its superintendence power under Article 227 of the Indian Constitution set aside the ex-parte decree, and the respondents were directed to pay to the petitioner cost of Rs.2,50,000 within 16.10.2020 as compensation for the expenses incurred in stamp papers and sale deed execution.
- Aggrieved by the order of the High Court, the petitioner filed a leave petition in the Hon’ble Supreme Court.
Issues:
- Whether the ex-parte decree passed by the trial court against the minor (third defendant) without the proper appointment of a guardian is just and appropriate?
- Whether or not the High Court acted legally in summoning the original records in the suit?
- Was there proper application of the procedure prescribed in Order XXXII, Rule 3 of the Code for the appointment of the guardian of the minor in this case?
Contention of Petitioner:
- It was contended by the learned counsel on behalf of the petitioner that the High Court was not right in setting aside the ex-parte decree of the Trial Court regarding the matter relating to Section 5 of the Limitation Act.
- The respondent party was highly negligent in their approach. There was an inordinate delay, in the first place, in defending the original suit, secondly, in defending the execution deed, and then again in seeking to set aside the order of the Trial Court by the opposing party.
- According to the cause title in the execution application in 2017, the third defendant was represented as a person of about 24 years. So, the question of the appointment of a guardian does not come into the picture.
- The grounds or reasons stated by the respondents for the delay nowhere mentioned that Order XXXII, Rule 3 of the Code was not followed by the Trial Court while hearing the matter.
- Another contention that could be drawn is that the ex-parte decree could be set aside only against the third respondent (whose majority is in question) and not against the other parties to the case.
Contention of Respondent:
- The learned counsel on behalf of the respondent contended that the High Court has wider superintendence power under Article 227 of the Indian Constitution and assessment of the learned judge of the High Court was appropriate.
- The High Court has accurately and precisely examined the original records of the Trial Court and has thus concluded that the interest of the minor was not considered as per the Order XXXII of the Code.
- Owing to the non-fulfillment of conditions prescribed under Order XXXII, Rule 3 of the Code, the High Court dismissed the ex-parte order as void.
Judgement:
- After the proper assessment of facts and hearing both sides to the case, the Hon’ble Apex Court held that there was an error on the part of the Trial Court.
- The Trial Court failed to appoint a guardian on behalf of the minor (third defendant in this case) following Order XXIII, Rule 3 of the code.
- Moreover, the actions of the High Court in summoning the original records using its power under Article 227, considering the interest of the minor specifically, was not improper.
- The contention of petitioners that the High Court cannot dismiss the ex-parte decree by invoking the powers under Article 227 of the Indian Constitution is vague.
- It is also well settled that the jurisdictions of the High Court under Article 227 are in addition to and wider than the powers provided under Section 115 of the Code.
- The learned bench held that the ex-parte decree passed against a minor without the appointment of a guardian on his behalf is a nullity. Thus, in this case, the minor was prejudiced.
- On account of a contrary pleading by the petitioner, the contention given by the petitioners regarding the age of the third defendant was rejected.
- Also, the court ruled out the contention that the decree could have been set aside only against the third defendant and not against others.
- Therefore, the Hon’ble court finds no illegality in the judgement passed by the High Court setting aside the ex parte decree.
Accordingly, the Special Leave Petition is dismissed.
Ratio Decidendi:
- Although the respondents have been negligent in defending the suit and other proceedings within the time, it cannot be ignored that the Trial Court too failed to look for the proper appointment of a guardian on behalf of the third respondent as per the law.
- The Trial Court disposed of the application in I. A No.981 of 2013 was filed by the petitioner for the proper appointment of a guardian under Order XXXII, Rule 3 of the Code.
- Furthermore, “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.” Thus, the Madras High Court has appropriately exercised the power by elaborating it wider.
- The power of a High Court Judge to summon the records to examine them is not improper. Since the superintendence power of the High Court provided under Article 227 is much wider than that of Section 115 of the Code.
- On account of a contrary pleading by the petitioner, the contention given by the petitioners regarding the age of the third defendant was rejected. Also, the court ruled out the contention that the decree could have been set aside only against the third defendant and not against others.
- Therefore, the Hon’ble Court finds no illegality in the judgement passed by the High Court setting aside the ex parte decree.
Conclusion:
From the above-stated case, we can say that the decision taken by the High court which was further upheld by the Hon’ble Supreme Court was appropriate and as per the procedures established by the law.
Any ex-parte decree against a minor without having been represented by a duly appointed guardian as per the order prescribed in the relevant code is a nullity.
Drafted By: Shivani Tiwary, School of Law DAVV.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
Published On: October 26, 2021 at 19:33 IST