ORDER A.R. Navkar, J. 1. This is an appeal against the order and decree dated 4-12-1979, passed by the Fourth Additional District Judge, Gwalior, in Civil Misc. Case No. 7 of 1919, which was preferred against the ex-parte Judgment and decree dated 12-2-1979, passed by the Fourth Additional District Judge, Gwalior in Case No. 13-A of 1977 Civil Original. 2. The facts of the case are that the respondent filed a civil suit bearing No 13-A of 1977 in the Court of the Fourth Additional District Judge, Gwalior for partition of Joint Hindu Femily property situaled at Mainawali Gali, Lashkar, against eight sharers, wherein the plaintiff alleges to have 1/4th share, During the pendency of the suit, the defendant, Shivkailash, husband of appellant No. 1 and father of appellant No. 2 and respondent Nos. 9 to 14, died and they were brought on record as his legal representatives. Except the heirs of late Shivkailash, none of the other respondent-defendants has filed any written statement in the original civil suit That is (sic) legal representatives of Shivkailash are the contesting defendants. 3. In Original Civil Suit, 25-10-1978 was fitted for evidence, on 25-10 1978, Counsel of Smt. Girjadevi, appellant No 1, requested the learned Court to adjourn the date as Smt. Girjadevi appellant No. 1 was unable to attend the Court because of illness and other reasons. The learned trial Judge adjourned the date for evidence to 2-2-1979, and imposed costs of Rs. 25/- with an order to keep the witnesses present in the Court at her own risk On 2-3-1979. counsel for the appellant and one Smt. Ranjana Devi pleaded no instructions in the case. In absence of the defendants except one Amarnath, the learned trial Court proceeded exparte, against minors without appointing a new G. A. L. when original G. A L. Shree P. C. Jain was absent and recorded the statements of plaintiff Indranath alone and closed the evidence and fixed the case for judgment on 12-2-1979. On 12-2-1979. the Judgment was pronounced and decree was passed. Against the said Judgment and decree, appellant Nos. 1 and 2 filed an application on 5-3-1979 under Order 9 rule 13 of the Code of Civil Procedure to set aside the Judgment and decree dated 12-2-1979. 4. On 12-2-1979. the Judgment was pronounced and decree was passed. Against the said Judgment and decree, appellant Nos. 1 and 2 filed an application on 5-3-1979 under Order 9 rule 13 of the Code of Civil Procedure to set aside the Judgment and decree dated 12-2-1979. 4. The main submission in the application was that she was looking after the case for herself as appellant No. I and for her son appellant No. 2 and her daughter Smt. Ranjana Saxena, Appellant Smt. Girjadevi Saxena, who is a lecturar in Private Cegree College, Guna, was down with fever (jaundice) from 2-2-1979 to 3-3-1979 and she was advised rest by the Doctor, Further, she was advised not to undertake troublesome journeys. Due to this ill-health and mental agony she was suffering because of the death of her husband on 10-3-1978, she could not give instructions to her advocate in time and due to this reason alone, the appellant could no present herself in the Court on 2-2 1979 and 12-2-1579 and an ex-parte decree and judgment were passed against the appellants. In support of her application, Girjadevi submitted her affidavit, a medical certificate and also gave her evidence, while on behalf of respondent No 2. no evidence of rebuttal was led. The learned Fourth Additional District Judge, Gwalior did not agree with the above contentions of appellant No. 1 and rejected her application submitted by her under Order 9 rule 13, CPC, Aggrieved by the said order of dismissal, the present appeal is filed. 5. On the date on which the ex-parte decree was passed, I may mention that Santosh Kumar Saxena, respondent No. 10 was aged 9 years, while Sanjiv Kumar, Saxena, respondent No. II was 8 years old; Kumari Jyoti Saxena, who is respondent No 12 was 15 years old; Kumari Rashmi Saxena, who is respondent No 12 was 13 years old and Kumari Abha, who is respondent No. 14 is 10 years old and one P L. Jain was appointed by the Court as guardian-ad-litem for looking after the interests of the minors and to defend them. But, he did not appear on the said date. Even though the fact that there are minor defendants and without appointment of a guardian. But, he did not appear on the said date. Even though the fact that there are minor defendants and without appointment of a guardian. 0they cannot be proceded against, was before the Court, the learned trial Court, ignoring the provisions of the Code of Civil Procedure under Order 32, rule 3, has proceeded exparte against the minors when it is the duty of the Court to see that the interests of the minors are guarded by appointing the guardian. A decree passed against minors who are not so represented must be regarded as a decree passed against a person not a party to the suit and is, therefore, without jurisdiction, null and void. 1 may refer to Vijay Kumar v Madhavrao 1964 JLJ 383. When the guardian-ad-litem was not present before the Court, who was appointed by it, to represent the minors, it was the duty of the Court to discharge Shri P. C. Jain from the guardianship of the minors and the Court should have appointed some other person as a guardian to represent the minors. That is not done in the present case. 6. The learned trial Court has dismissed the application of Smt. Girja Devi, saying that the medical certificate given to her should not be believed as it is very difficult to accept the proposition that the Doctor did not charge any fees for treating the petitioner during her illness and that the certificate of the doctor was given by him some 4 or 5 days prior to the filing of the application. The other ground for rejecting the application is that the learned Court has disbelieved the statement of Girja Devi when she has stated that even though she was ill during the period for which she has produced the medical certificate, the Principal of her school allowed her only to mark her presence and to go home as working in School hours will be hazardous to her health. Learned trial Court has disbelieved this statement, saying that Girja Devi has not produced in evidence the concerned Principal to substantiate her statement and in a Government Institution, grant of such a concession is very difficult to be believed. But, I do not find anything to come to such a conclusion. Learned trial Court has disbelieved this statement, saying that Girja Devi has not produced in evidence the concerned Principal to substantiate her statement and in a Government Institution, grant of such a concession is very difficult to be believed. But, I do not find anything to come to such a conclusion. If the plaintiff was very much particular to show that whatever has been stated by Smt. Girja Devi is false and the certificate obtained is not correct, then. in rebuttal, the plaintiff should have produced the witnesses to rebut the fact. There is nothing on the record to come to a conclusion that Girja Devi is giving a false evidence. Girja Devi was attending the case throughout and she was also contesting the suit. Provisions under Order 9. rule 13 CPC are not penal in nature; and what is to be seen when an application under Order 9, rule 13, CPC is filed before the Court is laid down in Fulsing v. Budhiyabai 1962 JLJ SN 123, which is as under:-- The provisions of Order 9, Civil Procedure Code are not penal. In the absence of any clear motive for defendant to have deliberately absented himself from the Court on the date of passing exparte decree the Court should hold that the defendant made out sufficient cause for his not-appearance. The rules of procedure should not be so strietly applied as to deny justice to the party unless the Court is satisfied that the party had a clear motive for his non-appearance and he deliberately absented to achieve that motive. In the said Judgment, a Judgment of this Court in Jhunu Pradhan v. Mayadhar AIR 1954 Nag 62, is followed, in which it is laid down as to what will be a sufficient cause. It is held therein as under:-- In deciding that a suit dismissed in default should be restored under Order 9, rule 9, what has 10 be considered is whether the party was really trying to appear on the date fixed for the case and if he honestly intended to be present not being guilty of anything in the way of misconduct or gross negligence, then he should not be deprived of his chance of being heard. Each case has to be decided on its own fact but the exercise of discretion should not be far from equitable considerations arising from those facts. Each case has to be decided on its own fact but the exercise of discretion should not be far from equitable considerations arising from those facts. Thus where it was clear from the order sheets of the trial Court that the plaintiff was throughout diligent in proceeding the suit that several adjournments were given by the Court for no default of the plaintiff, that on the date on which the suit was dismissed in default, no evidence was to be recorded, that there was no doubt that the plaintiff had been lacking and the evidence adduced by the plaintiff about his illness had not been rebutted : Held : That the trial Court failed to see that the principle 'actus curiae neminem gravabit' (an act of the Court shall prejudice no man) applied. The plaintiff, who was all along diligently prosecuting the suit, would not be dilatory against his own interest by remaining deliberately absent on the date of hearing. Thus there was sufficient cause for his non appearance and the order of dismissal of the suit could be set aside. In the non-appearance of the party is due to illness and if there is no rebuttal on the part of the other side, then how the case is to be considered is as laid down in Kasturibai v. Kuntibai 1978 (1) MP WN 403, as under :-- The only point in controversy in the present appeal is whether the appellant had made out sufficient cause for her absence on 31-1-1976 According to the trial Court she failed to establish sufficient cause for her non appearance on account of illness. Having gone through the evidence on record in that regard, this Court finds that the appellant-examined herself and the doctor who treated her. The respondent neither examined herself nor any witness. Even the reply which was submitted to the application under Order 9, rule 13 of the Code, filed by the appellant before the trial Court, the respondent did not swear any affidavit in support of her reply. In these circumstances, this Court finds it difficult to appreciate the reasoning of the trial Court that the evidence of the appellant is lacking so as to constitute sufficient cause. The principles which are to be seen while deciding an application under Order 9, rule 13 CPC are laid down in Jaiprakash v. Motilal 1980 (1) MPWN 103. In these circumstances, this Court finds it difficult to appreciate the reasoning of the trial Court that the evidence of the appellant is lacking so as to constitute sufficient cause. The principles which are to be seen while deciding an application under Order 9, rule 13 CPC are laid down in Jaiprakash v. Motilal 1980 (1) MPWN 103. It reads as under: .....In appreciating evidence, the Courts below seem to have overlooked an important decision of this Court reported in 34 MPLC 210 =ILR 1948 Nag. 252-1949 NLJ 83. Kashirao Padanji v. Ramchandra Balaji Marathe. The placitums need be cited for their advantage : "Provisions of Order 9, are never meant to be penal provision and it is duly clear in cases of gross negligence and mis-conduct that a party should be deprived of the opportunity of having a satisfactory disposal of the case, which evidently can only be done when both parties have full opportunity of placing their case and evidence before the Court." "In the absence of any clear motive for the defendant to have deliberately absented himself from the Court on the date fixed for hearing of the case, the Court should set aside exparte Older. Rule of procedure should not be too strictly applied to deny justice to the party unless the Court is satisfied that the party had a clear motive for his non-appearance and be deliberately remained absent to achieve that motive. Similar is the view axpress in Kusum Vaishya v. Ravindra Saran Vaishya [1] The relevant portion from the Judgment reads thus:-- It is well settled by a number of authorities, which are often repeated, that the provisions of Order 9 are not penal, that it is only in clear cases of gross negligence and misconduct that a party should be deprived of the opportunity of having a satisfactory disposal of the case, which evidently on be done only when both the parties have full Opportunity to place their respective caws and evidence before the Court, that, in the absence from the Court on the date fixed for hearing of the case, the party must be held to have made out sufficient cause for absence. The rule of procedure should not be too strictly applied to deny justice to the party unless the Court is satisfied that the party had a clear motive for his non-appearance and the absence was deliberate to achieve that object, It is, however, not meant thereby that the Court should find out sufficient cause where none exists. Again similar view was taken in Anandkumar and others v. Rev Na henial Peters and others 1977 (II) MPWN 509. The relevant portion from the Judgment reads thus : The trial Court after examining the evidence led by the parties has found that the defendant was really ill. (sic) this basis that the exparte decree was set aside. The learned counsel for the plaintiffs-applicants has argued that the trial Court has also observed that the defendant was negligent in not informing his counsel. It is true that there is some such observation in the last paragraph of the order, but it does not mean that the trial Court did not hold that there was no sufficient cause for the defendant's non appearance. As earlier stated that there is a clear finding that the defendant was really ill. This implies that on the date of hearing he was unable to go to the Court because of illness, that, in the opinion of this Court, amounts to sufficient cause. A more prudent litigant would have informed his counsel by sending a messenger and instructed him to take an adjournment but from this lapse it cannot be concluded that the defendant had no sufficient cause for his non appearance. Added to these things, the Court has not taken into consideration the provisions of Order 32 rule 3, CPC. That being the case, I am of the view that the order of the trial Court, dismissing the application filed by Girja-devi is penal in nature even though the appellant has given sufficient cause for her absence on the date on which the exparte decree and order were passed. 7. The result, therefore, is that the appeal is allowed and as the appellant has proved sufficient cause for her absence by producing the Doctor's certificate supported by her affidavit and also showing that the minors' interest therein was not represented by the guardian appointed by the Court, the application of the appellant for setting aside of the ex-parte decree deserves to be allowed and I allow the same. But, it will have to be allowed subject to payment of costs. If the appellant pays to Shri M. M. Jain, Advocate for the respondents Rs. 200/- within a period of two months from today, the ex-parte decree and order will stand set aside. If the costs, as mentioned above are not paid within the stipulated period, the application for setting aside the decree will stand dismissed. There will be no order as to costs of this appeal in this Court. 8. As, Shri P. G. Jain has not acted in the interest of the minors and on the date when the exparte decree and order were passed, he did not bring to the notice of the Court that the minors should be represented by a validly appointed guardian, I think it will be proper to remove the present guardian ad litem and appoint a new one, who will look after the interest of the minors properly. Appeal dismissed.