Aji Kumar v. Narayanan — 1994 DIGILAW 305 (KER)

Judgment :- This Second Appeal is by defendant No. 9 in a suit for recovery of possession of a building and for a permanent injunction restraining the defendants in the suit from trespassing into the plaint schedule property, the easternmost portion of a larger extent. The claim for recovery of possession of the building was added by the plaintiffs by way of an amendment. Originally in the suit there were three defendants of whom the third defendant was the father of the appellant. Defendants 1 and 2 in the suit were set ex¬parte. The suit was filed on 18-6-1975. The third defendant filed his written statement on 13-2-1976 denying the title set up by the plaintiffs and claiming title in the land in himself. The plaint had proceeded on the footing that the building in the land was said to have been construed by the predecessor of the third defendant but that the third defendant had abandoned that property quite sometime back. In the written statement, the third defendant had inter alia raised a claim that he was a kudikidappukaran protected by the Kerala Land Reforms Act. The issue of kudikidappu was referred to the concerned Land Tribunal by the trial court in terms of S.125(3) of the Kerala Land Reforms Act. The Land Tribunal returned a finding dated 28-4-1979 holding that the third defendant was not entitled to protection available to a kudikidappukaran under the Land Reforms Act. After the suit came hack to the trial court, the third defendant died on 30-4-1983. Defendants 4 to 9 were impleaded in the suit as his legal representatives by order dated 20-9-1983. By order on I. A.No. 2248 of 1983 defendant No.4 the mother of the appellant herein was appointed guardian' of the appellant and his brother the additional 8th defendant who was also a minor. It is thereafter that the plaint was amended by the plaintiffs claiming recovery of the building. The application for amendment was filed on 24-2-1984 and the same was allowed on 26-6-1984. An additional written statement was filed by the 4th defendant questioning the right of the plaintiffs to recover the building. It is thereafter that the plaint was amended by the plaintiffs claiming recovery of the building. The application for amendment was filed on 24-2-1984 and the same was allowed on 26-6-1984. An additional written statement was filed by the 4th defendant questioning the right of the plaintiffs to recover the building. By judgment and decree dated 24-6-1985 the trial court decreed the suit restraining the defendants including the appellant from taking any income from the property or cutting or removing any trees from the property and from doing any act against the ownership and possession of the plaintiffs over the plaint schedule property and also allowing the plaintiffs to recover possession of the building and the site thereof from defendants 4 to 9. None of the other defendants filed any appeal against the decree. But the 9th defendant in the suit who was a minor and who was represented by the guardian, his mother and who attained majority on 14-5-1987 during the summer vacation of the courts, filed an appeal on 23-5-1987, the date on which the courts reopened after the summer recess. He took the stand that since he had attained majority only during the summer recess and since the time for filing the appeal could not run against him while he was under a disability, the appeal filed on the reopening day was within the time. On behalf of the appellant, an attempt was made to rely on S.6 of the Limitation Act to contend that the appeal should be treated as having been filed within time. But subsequently the appellant filed I.A.No.524 of 1988 under S.5 of the Limitation Act praying that the delay in filing the appeal may be condoned and the appeal entertained. He put forward the contention that his mother, the guardian, was negligent in the conduct of the suit before the trial court and in not filing an appeal in time on his behalf and his disability ceased only on 14-5-1987 and hence the delay in filing the appeal caused by the negligence of the guardian may be condoned. He put forward the contention that his mother, the guardian, was negligent in the conduct of the suit before the trial court and in not filing an appeal in time on his behalf and his disability ceased only on 14-5-1987 and hence the delay in filing the appeal caused by the negligence of the guardian may be condoned. This application was resisted by the plaintiffs who contended that the appellant was not the only legal representative of the deceased third defendant in the suit, that the appellant had only a claim in common with defendants 3 to 8 the other legal representatives of defendant No.3, that the other legal representatives had put forward the necessary contentions in the suit and that in that view the allegation of negligence against the guardian raised by the appellant is untenable and in any event the non-filing of an appeal by the guardian could not be treated as negligence of the guardian. The lower appellate court found that the appellant had not made out sufficient grounds for condoning the delay and dismissed I.A.No. 524 of 1988, the application for condoning the delay. As a result of the dismissal of that application, the lower appellate court dismissed the appeal as barred by time. It is this decision of the lower appellate court that is challenged in this Second Appeal by the 9th defendant. 2. Before the court below, on behalf of the appellant, a contention was raised that the appellant was entitled to exclusion of the time until the cessation of his minority in view of S.6 of the Limitation Act. S.6 of the Limitation Act specifically provides for exclusion of time due to the disability of minority, insanity or idiocy only in the matter of institution of a suit or the making of an application. Though an argument was attempted on behalf of the appellant that the word suit would include an appeal as generally understood, the same was not pursued by the learned counsel for the appellant in view of the definition of suit contained in S.2(1) of the Limitation Act which provides that a suit does not include an appeal or an application. There was no argument before me that the context of S.6 of the Limitation Act requires the non-adaptation of the definition of 'suit' contained in S.2(1) of the Act. There was no argument before me that the context of S.6 of the Limitation Act requires the non-adaptation of the definition of 'suit' contained in S.2(1) of the Act. If that be so, it is clear that S.6 could not ipso facto be applied to an appeal and the appellant could claim no exclusion of the period on the ground of minority in the matter of the filing of the appeal. That this is the correct position had been recognised as early as in the year 1890 in the decision of the Allahabad High Court reported in Bechi v. ahsan-ullah Khan (I.L.R 12 All. 461) in which speaking of S.7 of Limitation Act of 1877 which corresponded to S.6 of the Limitation Act of 1963, Justice Mahmood speaking for the Full Bench observed: "It is true that some of them are minors but they are duly represented by guardian whose interests are the same as theirs and the fact of minority could not prevent the guardian from showing due diligence on behalf of the minors. It is noticeable that S.7 of the Limitation Act, in extending the period of limitation on account of minority, speaks only of suits and application and makes no mention of appeals and these provisions are therefore unavailable to the minors-defendants". 3. It appears to me that there is a reason behind the exclusion of the application of S.6 to appeals. When a suit is instituted, a guardian or next friend is appointed for a minor defendant or plaintiff by the court in terms of 0.32 of the Code of Civil Procedure. The decree passed in the suit in the presence of guardian and item is binding on the minor. At best it is only voidable and not void. (Even a compromise decree without leave of court is not void. See Bishundeo v. SeogeniRai ( A.I.R 1951 SC 281), Savithri anderjanam v. Valappad Nair Bank Ltd. (1957 KLJ 1157). Therefore it is clear that the guardian or next friend is in a position to act on behalf of the minor in fulfillment of his duty to the minor and in such a situation, there is no question of time for filing an appeal not running against a minor on the ground of disability protected by S.6 of the Limitation Act as regards suits and applications by a minor. If no one approaches the court on behalf of a minor, the court will have no occasion to appoint a guardian for the minor, and it became necessary to give protection to the minor and to suspend the running of time until he was able to approach the court by himself by filing a suit or an application. 4. If an exclusion under S.6 of the Limitation Act is not available to the minor, then necessarily he has to make out sufficient cause for condoning the delay in filing the appeal. A decree against minor who was represented by a duly appointed guardian cannot in the absence of fraud or negligence on the part of the guardian be challenged by the minor on attaining majority. The position would be the same, if he seeks to file a belated appeal after he attains majority. Obviously, this aspect of fraud or negligence will depend on the facts of a given case and I have to consider the question of condoning the delay in this case with this principle in mind and in the light of the available facts. 5. The learned counsel for the appellant submitted with reference to the decisions reported in Morosadashiv v. Visagi (I.L.R 16 Bombay 536), Umrao Begum v. RahmatIllahi (AXR 1939 LAH. 439) and Devaralinga v. Putta Swamy (A.I.R 955 My. 133) that a minor requires special protection and the interpretation of S.5 of the Limitation Act in this case must be more liberal so as to enable a quondam minor to exercise his rights and that from that point of view the order of the court below refusing to condone the delay in filing the appeal was erroneous. 1n Devaralinga y. Puna Swamy (A.I.R 1955 My. 133) R. Venkataramaiya, C.J. observed: "It is however necessary to bear in mind that when the delay affects the minors the penalty imposed is vicarious as the person in default is not the sufferer but the consequence of default is inflicted on the minors. For this reason, courts are less rigid in enforcing the bar of limitation and somewhat liberal in exercising power to condone the delay when interest of minors are involved. For this reason, courts are less rigid in enforcing the bar of limitation and somewhat liberal in exercising power to condone the delay when interest of minors are involved. This does not mean that such cases are exempt from the operation of the law of limitation but does indicate the need to make a difference in considering delay which affects minors and adults." Similarly in Umrao Begum v. Rahmat Illahi (A.I.R 1939 Lah. 439) the court observed that though S.6 of the Limitation Act does not extend the period of making an application till after the minority had ceased, the court would consider that minority is a factor to be taken into account when considering the circumstances which justify the application of S.5 of the Limitation Act and that applications for extension of time under S.5 of the Limitation Act have to be more liberally construed in favour of minors than other litigants. In the case on hand, it must be remembered that the appellant attained majority on 14-5-1987 during the summer vacation of the court that year and had filed the appeal on 23-5-1987 the date on which the court re-opened, that is, on the first available day after he attained majority. No doubt the suit was decreed by the trial court on 21-6-1985 and the time for appeal had expired long before the appellant attained majority. The learned counsel for the respondent-plaintiff submitted that the defence that was available to the minor being one in common with the other defendants who were the other legal representatives of defendant No. 3 and were sui juris, there was no occasion for showing any special consideration to the minority of the appellant in the case on hand and that the mere omission of the guardian to file an appeal against the decree would not be negligence so as to enable the minor to question her action. He referred to the decision of the Full Bench of the Travancore Cochin High Court reported in Balakrishna v. Ganesha ( A.I.R 1954 TC 209) to contend that even the non-filing of written statement by the guardian would not always amount to negligence on the part of the guardian and would not enable the minor to get out of the operation of the decree on the ground of negligence of the guardian. He has also cited various decisions in an attempt to show as to what would amount to negligence of the guardian when an action or inaction of the guardian is questioned by a quondam minor. But as observed by Viswanatha Shastri, J. speaking for the Division Bench in C. Srirama Murthi v. Official Receiver ( A.I.R 1957 A.P. 692): The omission to appeal against a decision adverse to the minor is not negligence on the part of the next friend or guardian ad item unless it is established that he had sufficient funds of the minor to meet the expenses of the appeal that the decision was so plainly illegal, erroneous or perverse mat no reasonable person could have arrived at it and that a valuable right of the minor had been lost as the result of the adverse decision. If a next friend or guardian advocate item of a minor after conducting or defending a suit to the best of his ability elects to abide by an adverse decision in the belief that an appeal would not secure any material advantage to the minor, he cannot be said to have acted negligently. Daiva Animal v. Selvaramanuja Naicker, A.I.R 1936 Mad. 479; Nagayya v. Venkatayya, A.I.R 1942 Mad. 82". It cannot therefore be said that the mere non-filing of an appeal by a guardian would amount to negligence and at the same time it cannot also be said that the fact that the guardian did not file an appeal would not amount to negligence in all cases. It is therefore clear in the light of the observations of Viswanatha Shastri, J. in the decision referred to above that the question whether the failure of the guardian to file an appeal would amount to negligence of the guardian is a question that has to be considered in the context of the litigation before the court. 6. Here, in the present case the decree as granted was one for recovery of possession of the building and a permanent injunction restraining the defendants from trespassing into the property on which the building stood. There was some dispute regarding the ownership of the building as can be seen from the averments in the plaint, the written statement filed by the 3rd defendant and the additional written statement filed by the guardian of the minor on 13-5-1984. There was some dispute regarding the ownership of the building as can be seen from the averments in the plaint, the written statement filed by the 3rd defendant and the additional written statement filed by the guardian of the minor on 13-5-1984. 1n the context of the case, it cannot be positively asserted that the minor would have gained nothing if the guardian had filed an appeal against the decree of the trial court dated 21-6-1985 or that the appeal was a futile or hopeless one. Using only that yardstick and applying the principles of the decisions referred to earlier and making a liberal approach to the interpretation of S.5 of the Limitation Act with special reference to the disability of the appellant as a minor, I am of the view that this was a fit case where the lower appellate court ought to have condoned the delay in the appellant filing the appeal before that court after attaining majority. As observed by the Supreme Court in Ramlal v. Mewa Coal Fields Ltd. (A.I.R 1960 (2) SC 261) approving the decision of the Madras High Court in Krishna v. Chathappan (I.L.R 13 Mad. 269). "Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words 'sufficient cause' receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the appellant". Thus making a liberal approach to the interpretation of S.5 of the Limitation Act and bearing in mind that it is a quondam minor that is before the court who in the light of the decisions referred to earlier deserves special consideration of the court. I have no hesitation in holding that the appellant is entitled to have an opportunity to put forward his contention on merits before the lower appellate court. In that view of the matter I set aside the order of the lower appellate court in I. A.No. 524 of 1988 and condone the delay in filing the appeal. I have no hesitation in holding that the appellant is entitled to have an opportunity to put forward his contention on merits before the lower appellate court. In that view of the matter I set aside the order of the lower appellate court in I. A.No. 524 of 1988 and condone the delay in filing the appeal. In view of the fact that I have condoned the delay in filing the appeal before the lower court, it is clear that the dismissal of the appeal A.S.No.82 of 1987 on the ground that it is barred by limitation cannot be sustained. If so, the dismissal of the appeal has also to be set aside. 7. In the result, I set aside the order on.A.No. 524 of 1988 in A.S.No. 82 of 1987 and allow I.A.No. 524 of 1988 and condone the delay in filing the appeal A.S.No.82 of 1987. As a consequence, the dismissal of A.S.No. 82 of 1987 is set aside and that appeal is remitted to the lower appellate court for a fresh disposal in accordance with law. The parties will appear before the lower appellate court on 20-9-1994 and the lower appellate court will try and dispose of the appeal as expeditiously as possible considering the fact that it is an appeal of the year 1987. In the circumstances of the case, I make no order as to costs.