ORDER 1. Civil Suit No.3-N92 for redemption of mortgage, restoration of possession and perpetual injunction, was initially instituted on 7.8.1992 by one Sewaram, father of the revisionists. After service on defendants but before filing of the written statement, original plaintiff died on 14.8.1996. Application for legal representatives was submitted under Order XXII rule 3 CPC on 13.11.1996, which contained the names of the plaintiffs-revisionists and non-applicant No.3. Revisionists were minors at the relevant time, aged 15 and 12 years, respectively and were represented by non-applicant No.3 in the capacity of next friend. Written statement was submitted on 22.8.1997, refuting thereby the averments contained in the plaint. Issues were raised by the learned trial Judge on 4.3.1998 and the case was fixed for evidence of the plaintiffs. Adjournments were sought by the lawyer on behalf of the plaintiffs on 26.6.1998, 13.8.1998 and 22.9.1998. On 9.12.1998, last opportunity was granted for evidence and the case was adjourned to 5.2.1999. On this day, neither the plaintiffs nor their counsel appeared before the trial Court, consequently the suit was dismissed in default of appearance on 5.2.1999. 2. Plaintiffs-revisionists on 5.2.2001 submitted an application under Order IX rule 9 CPC for restoration of Civil Suit No.3-A/1992 with allegations that they were minors at the time of dismissal of the suit in default of appearance. It is pleaded that neither they were aware of dismissal of the suit nor of having been impleaded in it. Non-applicant No.3 who was described as their next friend did not take due care of their interests. She did not inform the plaintiffs-revisionists about dismissal of the suit. On 12.12.2001, revisionist No.1, for the first time, came to know about the aforesaid dismissal when it was disclosed orally in the pending case under section 145 of CrPC before the City Magistrate that the suit instituted by their father was already dismissed. After collecting information, application under Order IX rule 9 CPC was submitted on 18.12.2001 alongwith application under section 5 of Indian Limitation Act to seek condonation of delay. 3. Defendants/non-applicants No.1 and 2 submitted their reply contending, inter alia, that number of opportunities were granted to plaintiffs to adduce evidence. Revisionist No.1 and non-applicant No.3 being plaintiffs No.1 and 2 were present in the Court, but did not deliberately adduce evidence. They are all residing together and were well aware of dismissal of the suit in default of appearance. Defendants/non-applicants No.1 and 2 submitted their reply contending, inter alia, that number of opportunities were granted to plaintiffs to adduce evidence. Revisionist No.1 and non-applicant No.3 being plaintiffs No.1 and 2 were present in the Court, but did not deliberately adduce evidence. They are all residing together and were well aware of dismissal of the suit in default of appearance. Thus, there being no sufficient cause, the application is liable to be dismissed. 4. Learned trial Judge, after recording the evidence of the parties dismissed the application vide its order dated 23.8.2005. Aggrieved by it, Misc. Civil Appeal No.26/2005 was submitted which, too, having been dismissed by the impugned order dated 12.12.2006, this civil revision has been preferred. 5. Shri N.K. Gupta, Advocate and Shri V. K. Bharadwaj, learned senior .advocate with Shri Anand Bharadwaj, Advocate, advanced their arguments on behalf of the revisionists and non-applicants No.1 and 2, respectively, which have been considered in the light of the material on record. 6. It has been submitted on behalf of the revisionists that the plaintiffs revisionists were minors as revealed in the cause title of the plaint and were shown to have been sued through next friend. It was the duty of the next friend, i.e., non-applicant No.3 to take due care of the minors' interest. She, by absenting herself in the suit on the date of evidence, has acted with gross negligence that, too, in detrimental manner to the interest of the minors. Dismissal of the suit was not proved to have been within the knowledge of the plaintiffs-revisionists. This being so, there was sufficient cause for codonation of delay as well as for restoration of Civil Suit No.3A/92. 7. Per contra, Shri Bharadwaj, learned senior advocate submitted that the findings returned by the Courts below in concurrent manner do not call for interference because they are based on correct appreciation of evidence on record. Moreover, plaintiff-revisionist No.1 was found major on the date of dismissal and the impugned order having been passed correctly, the revision petition is liable to be dismissed. 8. It is an admitted position, as revealed in the record that on the death of Sewaram, original plaintiff, on 14.8.1996, application for substitution of his LRs in his place was submitted on 13.11.1996, wherein, revisionists were shown as aged 15 years and 12 years, respectively. They were shown as minors through next friend Ku. 8. It is an admitted position, as revealed in the record that on the death of Sewaram, original plaintiff, on 14.8.1996, application for substitution of his LRs in his place was submitted on 13.11.1996, wherein, revisionists were shown as aged 15 years and 12 years, respectively. They were shown as minors through next friend Ku. Rekha (non-applicant No.3). This application was allowed and the names of all the LRs including the revisionists were substituted in place of deceased Sewaram, the original plaintiff. Thus, in the cause title of the plaint itself, plaintiff-revisionists were shown as minors through next friend Ku. Rekha (non-applicant No.3). Revisionist No.1 was shown as 15 years on 13.11.1996 vide application under Order XXII rule 3 CPC. His age was not disputed by the defendants. Accordingly, he must have been minor on the date of dismissal of the suit on 5.2.1999. Learned Courts below, on the basis of certified copy of the sale-deed (Ex.D-4) executed by revisionist No.1 on 5.8.1999, held that he was major on the date of dismissal of the suit on 5.2.1999, since he was shown as aged 19 years in the sale-deed. It is true that this witness has stated that at the time of execution of sale-deed on 5.8.1999, he was major, however this, by itself, will not mean that the revisionist No.1 was also major on 5.2.1999. Sale-deed contained in EX.D-4 was not put to him in the evidence. This apart, it is important to note that plaintiff-revisionist No.1 was not shown in the plaint itself to have attained majority and was not relieved from the next friendship of non-applicant No.3. It is further true, that the learned trial Judge had not issued any notice to revisionist No.1 for grant of option to contest the suit on attaining majority. In this view of the matter, it is held that there is no cogent evidence on record to hold that revisionist No.1 was major on the date of dismissal of the suit on 5.2.1999 and was aware of such dismissal in default of appearance. 9. Apart from the aforesaid, it is not gainsaid that plaintiff-revisionist No.2 was minor on the date of dismissal of the suit. In the mark-sheet and birth certificate placed on record, marked as EX.P-2 and P-3 her date of birth is shown to be 7.2.1983. 9. Apart from the aforesaid, it is not gainsaid that plaintiff-revisionist No.2 was minor on the date of dismissal of the suit. In the mark-sheet and birth certificate placed on record, marked as EX.P-2 and P-3 her date of birth is shown to be 7.2.1983. Thus, it cannot be disputed that revisionist No.2 was minor on the date of dismissal of the suit on 5.2.1999. 10. In a suit for the purpose of redemption, restoration of possession and perpetual injunction after the death of father, i.e., original plaintiff, Sewaram on 14.8.1996, his alleged rights to seek relief did devolve upon the revisionists and non-applicant No.3 equally. Such type of suit may be brought even by one of the heir of mortgagor. In this view of the matter, even revisionist No.2 was alone competent to bring a suit of this nature and the Courts below while dismissing the application for restoration ought to have taken into consideration the interest of the minor-plaintiff No.3 who is co-revisionist. 11. Care of the interest of minors is taken by virtue of order XXXII of Civil Procedure Code. Rule 1 provides for institution of suit by minor through next friend. Rule 4 prescribes qualifications for being next friend or guardian. Rule 5 makes every order made in a suit of in the application liable to be discharged, when minor is in any way concerned or affected and such minor is not being represented by next friend or guardian. Rule 7 does not permit a next friend or guardian to enter into an agreement or compromise on behalf of the minor without express leave of the Court. Rule 9 empowers the Court to remove next friend where the next friend does not perform his duty. Rule 10 further obliges the Court to stay proceedings in case of retirement, removal or death of the next friend, until appointment of a next friend in his place. Rule 12 prescribes, a course to be followed by minor plaintiff on attaining majority. Rule 13 enables minor plaintiff to repudiate a suit on attaining majority. 12. It is obvious from the aforesaid that at the outset it is the Court which is a guardian of the minor and is obliged to take care of minor's interest. This may be achieved through next friend in case of plaintiff and through guardian ad-litem in case of defendant. 12. It is obvious from the aforesaid that at the outset it is the Court which is a guardian of the minor and is obliged to take care of minor's interest. This may be achieved through next friend in case of plaintiff and through guardian ad-litem in case of defendant. In either case, the Court is to be vigilant that next friend or guardian should perform his duty of protecting the interest of the minor. If a next friend is negligent in performing his/her duty to represent the minor's case in proper manner, he/she may be removed by the Court as provided in rule 9. Revisionists were admittedly minors as shown in the cause title of the plaint. Even from the cause title, revisionist No.2 was undoubtedly minor on the date of dismissal of suit in default of appearance on 5.2.1999. Non-applicant No.3 who was next friend of plaintiffs No.2 and 3 did not remain present in the Court on date of hearing and further did not adduce evidence for minors/plaintiffs. Thus, she has obviously acted negligently against the interest of the minors by not adducing evidence for establishing minors' right to seek redemption of mortgage. 13. Division Bench of Andhra Pradesh in the case of Pakalapati Audiseshu Venkataramayya and another v. Pakalpati Prakasa Rao and others [AIR 1957 Andhra Pradesh 293], while dealing with the case for restoration of minor's suit dismissed in default of appearance has observed: "(3) It is to be noted that one of the appellants is a minor. When a question arises as to whether a minor has been prevented by sufficient cause from appearing in a suit, it has to be determined with reference to the conduct of the next friend of the minor. Now the non-appearance of the guardian (which term will hereafter include a next friend in the following discussion) may be due to accident, design or negligence. Where it is the result of accident the absence of the guardian will, of course, be treated as sufficient cause for non-appearance of the minor. The guardian and the minor are treated as one, and the dismissal for default or the ex parte decree will in consequence be set aside. The non-appearance may on the other hand be deliberate and designed. The guardian and the minor are treated as one, and the dismissal for default or the ex parte decree will in consequence be set aside. The non-appearance may on the other hand be deliberate and designed. Such wilful absence may be due either to the guardian acting in collusion with the opposite party and against the interests of his ward or to his acting in the interests of the minor and or in the interests of other parties to the litigation. If the Court is satisfied that the next friend had betrayed his trust, it will of course set aside the decree or dismissal, appoint a fresh guardian and proceed with the suit. If, on the other hand, it is clear that the absence was inspired purely by dilatory tactics designed in the supposed interests of the minor, the Court will let the order or decree stand. .... The third reason for the absence of the guardian may be his indifference or recklessness. In our opinion, where the Court is satisfied that the guardian has in not making his appearance neglected his duty to his ward as well as to the Court, it is incumbent upon the Court to protect the interests of the minor from the consequences of such negligence. The suit must be restored or the ex parte decree set aside, and a fresh guardian or next friend appointed." 14. There is no evidence on record to show that the absence of the next friend was inspired purely by dilatory tactic designed in the supposed interest of the minor. No such finding is recorded by the Courts below while rejecting the application. 15. It is equally true that defendants/non-applicants No.1 and 2 have been unable to establish that the revisionist would have gained unfair advantage by protracting the trial by remaining deliberately absent. This being so, the dismissal of the suit in default of appearance is liable to be set aside in view of the law laid down by this Court in the case of Puranlal v. Laxmiram [1961 MPLJ SN 6]. This being so, the dismissal of the suit in default of appearance is liable to be set aside in view of the law laid down by this Court in the case of Puranlal v. Laxmiram [1961 MPLJ SN 6]. I may also refer here the decision of Hon 'ble Shri Justice Chagla, the then Chief Justice of Bombay High Court, in the case of Bai Dahi and others v. Shankarbhai Deojibhai and another [AIR 1954 Bombay 214], in which in para 3 it has been observed: "(3) I should suggest a third way by which the interests of the minors should be protected. The Court has undoubtedly, as pointed out by Mr. Gokhale, very wide powers to restore suits independently of Order IX, rule 9. The Court has got power to act under section 51 where a minor's suit is dismissed." 16. Shri Bharadwaj, learned senior counsel placing reliance on the decision of Bai Dahi and others (supra), contended that the suit is not liable to be restored. On going through the said decision, it is found that the suit in question in that case was found to be frivolous and vexatious because it was once heard and dismissed on merits and was remanded to the trial Court in appeal on some technical grounds. It is not a situation in the present case because the suit on merits was not tried, at all. 17. It is further contended that by Shri Bharadwaj, learned senior counsel that in the absence of allegation of malice against next friend, application for restoration cannot be allowed. This Court is not impressed by the aforesaid submission,' because irrespective of malice if the next friend is unable to discharge his duties and causes prejudice or irretrievable loss to the minors, it may provide a ground for restoration of suit as observed in the preceding paragraphs. 18. Learned trial Judge found that the revisionist No.1 and non-applicant No.3 were present in the Court on the date of dismissal of the suit. This finding has been reversed by the learned lower appellate Judge in paragraph 17 of his order. There is no cogent evidence on record that the revisionists were otherwise aware of dismissal of the suit in default of appearance on 5.2.1999. This being so, the delay caused in submission of application for restoration was and is liable to be condoned. This finding has been reversed by the learned lower appellate Judge in paragraph 17 of his order. There is no cogent evidence on record that the revisionists were otherwise aware of dismissal of the suit in default of appearance on 5.2.1999. This being so, the delay caused in submission of application for restoration was and is liable to be condoned. Courts below have committed error in not condoning the delay. 19. Learned lower appellate Judge, despite giving a specific finding in paragraph 21 that revisionist No.2 was minor on the dismissal of the suit on 5.2.1999 in default of appearance, has committed gross error in denying the restoration without consideration of minors' interest and failure on the part of the next friend to discharge her duty. 20. Punjab and Haryana High Court in the case of Sham Singh v. Jaswant Singh and others [AIR 1971 Punjab and Haryana 462], has held that a suit by minor plaintiff through a guardian i.e. next friend cannot be dismissed on the ground that the guardian persistently refused to appear before the Court. The proper course is to remove such a guardian and appoint another guardian. It goes without saying that the Court has to safeguard the interests of a minor and cannot act in a manner to prejudice his interest. A right of a minor to avoid the decree obtained against him on account of the gross negligence of his guardian ad-litem has been held to be a substantive right by the High Court of Kerala in Narayanan Nambooripad and others v. Gopalan Nair and another [AIR 1960 Kerala 367]. 21. Considering the present case from this angle, it is observed that non-applicant No.3 by absenting herself failed to adduce evidence even to protect the interest of minors/co-plaintiffs who are presently revisionist and has, thus, acted with gross negligence. They have become major and are quite competent to take care of their own interest. Thus, they are entitled, in interest of justice, to an opportunity to prove their case. 22. In the result, civil revision succeeds. Impugned orders dated 12.12.2006 (Annexure P-1) and 23.8.2005 (Annexure P-2) are hereby set aside. Civil Suit No.3-A/1992 is restored to its original file for being decided on merits in accordance with law. Learned trial Judge is directed to decide the suit in expeditious manner, preferably within a year from the date of appearance of the parties. Impugned orders dated 12.12.2006 (Annexure P-1) and 23.8.2005 (Annexure P-2) are hereby set aside. Civil Suit No.3-A/1992 is restored to its original file for being decided on merits in accordance with law. Learned trial Judge is directed to decide the suit in expeditious manner, preferably within a year from the date of appearance of the parties. Parties to appear on 24.9.2010. No order as to costs.