This is a Revision Application against the order of the learned Senior Civil Judge, Quetta dated the 12th June 1968, by which the learned Senior Civil Judge dismissed the application of the applicants to amend their plaint in the suit before him.
2. The dispute in this Revision Application relates to land situated in Sibi which is claimed by the applicants but which appears to be in the respondent's possession. Although the dispute between the parties has been going on for many years so that the facts are complicated, for the purpose of this application, it is sufficient to state that in 1961 the applicants filed a suit in the Court of learned Senior Civil Judge, Quetta against the respondent for the possession of the land in dispute. But it is material to point out here that the two applicants were both minors, at the date of the suit, and were aged only 8 and 12 years, and the suit was filed by their uncle as their next friend. Further, according to their plaint, the property in dispute had devolved on them through a common ancestor Khuda Bux from whom it had passed to Jumma Khan, Karim Bux and their father Kadir Bux. It is not in dispute that Jumma Khan, Karim Bux and Qadir Bux are dead, and the applicants claim the land as the heirs of their father, Qadir Bux, who died in 1958. Further, according to them, as they were children when their father died, the respondent dishonestly and fraudulently got the land in dispute mutated in her name and also obtained unlawful possession of it, or of most of it, therefore, after prolonged litigation before the Revenue Authorities and even a writ petition, they were directed to file a civil suit. Hence the suit out of which this application has arisen. The suit was contested by the respondent. According to her written statement the property in dispute had never belonged to Khuda Bux but had belonged to her maternal grandfather Misri Khan. The said Misri Khan had died leaving behind four sons, including her father, Yar Muhammad. In the events that happened, Misri Khan's property devolved upon Yar Muhammad, and after his death on her, so that it was rightly shown in the revenue records as her property. She also claimed adverse possession of it, but it is very material to point out that she is the widow of Karim Bux deceased, the brother of Qadir Bux, the father of the applicants; and in the alternative, she has claimed the property in dispute as the widow and sole heir of Karim Bux. On these pleadings several issues were framed, but after evidence had been completed, the applicants, who were still minors, had filed an application on 8th August 1967, for the amendment of the plaint. Mr. Basharatullah very fairly conceded that this application was not elegantly drafted. However, the contention of the applicants in this application was that, as the respondent was a woman, she was precluded by custom from inheriting the property left over by Khuda Bux. Here it is relevant to point out that the respondent's husband was one of the sons of the said Khuda Bux, so that the amendment had reference to the alternative plea of the respondent in her written statement that she was entitled to the property in dispute as the sole heir of her deceased husband Karim Bux. This application was naturally opposed by the respondent on the ground that it was "highly belated" and that it would change the cause of action in the suit. It was rejected by the learned Civil Judge by a very short order on the ground of delay. This order was announced with his judgment in the main suit according to which he partially decreed the claim of the applicants. Both the applicants and the respondent were aggrieved by this judgment, therefore they filed appeals in the District Court which were heard and decided by the learned District Judge, Quetta by his judgment dated the 26th March 1968.
3. After examining the pleadings, the learned District Judge came to the conclusion that the issues were not properly framed, therefore he recast the issues and remanded the case to the trial Court for evidence on the issues framed by him. The applicants had of course pressed their claim to amend the plaint, and with reference to this claim the learned District Judge observed in his judgment that their application for amendment "was rightly rejected". The case was then remanded, and the applicants filed a second application in the trial Court for the amendment of the plaint on 15-4-1968, in which they submitted that they had inadvertently failed to plead that the respondent as a woman was prevented by custom from inheriting any property. Thus this application was a repetition of the earlier amendment application, the only difference being that it had been drafted properly and showed reasonable cause for an amendment of the plaint. This application was also successfully opposed by the respondent, and the applicants have come in revision against its dismissal.
4. The learned Senior Civil Judge has dismissed this second application on the sole ground that an identical application had been dismissed earlier, but that earlier application had been dismissed only because, according to the learned Judge, it was "highly belated". The point for determination therefore is whether the trial Court was justified in dismissing an amendment application on the sole ground of delay. I have no doubt that there can be circumstances in which an amendment application can be dismissed under Order VI, rule 17, C. P. C. on the ground of delay but, in the instant case, the Court was dealing with the interest of minors, therefore it should have applied its mind fully to the facts of the case before dismissing this application in what I can only describe as a lighthearted manner. As rightly submitted by Mr. Basharatullah, the amendment did not involve any change in the relief sought by the applicant minors. On the contrary, as I have pointed out, the amendment was sought with reference to the alternative plea of the respondent in her written statement that she was entitled to the property in dispute as the heir of Karim Bux, her deceased husband. Now, unlike the English practice, which has so much to be said for it, it is not customary in our Courts for the plaintiff to file a replication in reply to the averments in the written statement.
However that does not mean that the plaintiff is precluded from denying such averments or from giving evidence in rebuttal on such averments, because it is assumed that he has denied them.
This means that, in the instant case, the applicants were not only entitled to deny the alternative plea advanced by the respondent in her written statement but also to give evidence on it. In this view of the matter it can well be argued that they were entitled to prove that the respondent was precluded by custom from inheriting her husband's estate without even filing a formal amendment application, therefore in the circumstances discussed, even though the amendment application of the applicant minors was belated, it should have been granted on a proper construction of Order VI, rule 17, C. P. C., and in dismissing it solely on the ground of delay the trial Court acted illegally.
Bearing in mind the duty of the Courts to protect the interest of minors, a consideration which was completely ignored by the trial Court, the impugned order is per verse and is fit to be set aside in the exercise of this Court's revisional jurisdiction.
5. However Mr. Munawar, who had ,prepared his case with great industry, submitted that the claim of the applicants that the respondent was barred by custom from inheritance was not correct. This point will be decided by the trial Court on evidence, and it is not an objection relevant to the construction of Order VI, rule 17, C. P. C. But Mr. Mirza and Mr. Munawar also relied on the observations of the learned District Judge that the first amendment application of the applicants had been rightly dismissed. As the second amendment application is merely a repetition of the first application this is an argument which requires consideration and, in order to appreciate it, I would first briefly refer to the relevant observations of the learned District Judge.
6. In para. 4 of his judgment dated the 25th March 1968, the learned District Judge has observed "it was nobody's case that Qadir Bux (the ancestor of the applicants) was a common ancestor or that Mst. Shahnaz defendant had succeeded to the property through Karim Bux, her husband". Then in the second last paragraph of his judgment the learned District Judge has repeated the first observation and said "in these circumstances (the) application for amendment was rightly rejected". The question of the amendment of the plaint was of very great importance to the minors, yet the learned District Judge had disposed of their claim by these very brief observations. The basis of his view appears to be that the respondent had abandoned her alternative plea of inheritance through Karim Bux deceased who, as I have explained, was the uncle of the applicants and the husband of the respondent. But both Mr. Mirza and Mr. Munawar emphatically denied that the respondent had thus abandoned her alternative plea of inheritance through her deceased husband. Here I have to observe that the counter-affidavits of the respondent to the amendment applications in the trial Court are also inconsistent with the observations of the learned District Judge. Additionally, as the alternative plea of the respondent was based on a question of law any admission by counsel would not be binding on her, therefore, in the circumstances discussed, I am at a loss to understand how the learned District Judge came to the view that the respondent had abandoned her alternative plea. As this is the only reason given by him for his view that the applicants could not amend their plaint, it is obvious that his view was based on some misconception of learned counsel's arguments and I would be loath to treat these cursory observations as a decision under Order VI, rule 17, C. P. C. rejecting the plea of the applicants for the amendment of their plaint.
7. But as the applicants have neither filed an appeal nor a revision against the judgment of the learned District Judge, both Mr. Mirza and Mr. Munawar vehemently argued that the said judgment had become final, therefore the applicants were barred by res judicata from filing their second amendment application. Now as I have pointed out, in rejecting the plea of that applicants for the amendment of the plaint, both the trial Court and the District Court have utterly ignored their obligation to protect the interest of minors and, as that failure does not relieve this High Court of its obligation to protect the interests of minors. I was disturbed by this argument and I gave learned counsel time to study the law on the subject.
8. Mr. Basharatullah, who had to show that the applicants were not barred from filing a second amendment application by the observations of the learned District Judge, then refereed me to the judgment of the Madras High Court reported in Kaliamal v. Ramaswami Goundar . There the facts were that a suit had been filed on behalf of a minor and, after he attained majority; which was apparently long after the suit was filed, he filed an application to amend the plaint which was opposed, as in the instant case, both on the ground of laches and on 'he ground that it sought to alter the cause of action. In upholding the right of the former minor to amend the plaint on attaining majority, the learned Judge of the Madras High Court observed:-- "Under our law, there is a right in a minor to attack the guardian's acts in conducting a suit on the ground of gross negligence and to get any decree passed in such a suit set aside on proof of such negligence.
A Bench of this Court, to which I too was a party, has recently held that such right of a minor extends even to execution proceedings and appeals, and indeed even to the negligence of a guardian in not filing an appeal where one was obviously called for. So it is clear that a minor plaintiff, when he attains majority, must be given an opportunity of making even drastic amendments to a plaint according to what he considers ought to have been the correct and relevant allegations, for, at the moment when he attains majority, he takes the responsibility for his actions."
I am in respectful agreement with these observations, which are only an application of the principle that equity protects the interests of minors, a principle which was declared long ago for the Courts in Karachi by Davis, J. C., as he then was, in Mohanlal Tejumal v. Sh. Khushalbai .
9. However, Mr. Munawar submitted that principle of equity were not relevant and that no exception to the rule of res judicata should be made in favour of a minor, therefore the second amendment application of the minors was barred, and in support of this proposition he relied on a judgment reported inSaadullah Khan v. Kaki Jan . In that case, a learned Single v. Judge of the West Pakistan High Court held that even a decree against a minor could only be set aside on the ground of fraud.
But as a decree can always be set aside on this ground, if this view is correct, it means that minors are not entitled to any protection or relief from the Courts. With respect, I am not able to agree with this view. However, in taking this view the learned Single Judge has relied on three Indian decisions: Har Gobind and another v. Citam and others , Municipal Committee v. Harnam Dass and Raj Gopal Achariya Goswa mi v. Upendra Achariya.Goswami , therefore I have examined them. In the Allahabad case, a learned Single Judge of that Court has taken the same view as in the Peshawar case, but has not given any reasons for his opinion, and further the view of the learned Single Judge is contrary to the view of an earlier Division Bench of the Allahabad High Court in Brij Raj v.
Ram Sarup , in which it was held that a decree against a minor properly represented can be set aside not only on the ground of fraud but also on the ground of gross negligence. As to the Lahore case relied upon in the Peshawar judgment it does not relate to a suit by a minor, therefore, in my humble opinion, it is completely irrelevant to the question under consideration. In the Patna case, the view of the learned Judges of the Patna High Court was that a decree against a minor can be set aside not only on the ground of fraud but also on the ground of gross lathes, therefore, with respect, this judgment does not support the view taken in Saadullah Khan's case. Additionally, I find that the view taken in Saadullah Khan's case is contrary to the view taken by most of the High Courts of the sub-continent. Thus, more than 75 years ago, in Lalla Sheo Churn Lal and another v.
Ramandan Dcbey and another , a Division Bench of the Calcutta High Court, which included Amir Ali, J., as he then was applied the principles of the English Courts of Chancery and held that even when a decree had been passed against a minor properly represented, the minor was not prevented by the principle of res judicata from filing a suit to set aside the decree on the ground that the decision against him had been obtained on account of gross negligence by his next friend or guardian. That was also the view of the Bombay High Court in Sundra v. Sakharam Gopalshet ,1 2 3 4 5 6 7 8 9 and of a Division Bench of the Punjab Chief Court in Ismail v. Mst. Sultan Bibi . Thus it will be seen that all the High Courts of the sub-continent have laid down the principle that a Court is under a duty to protect the interests of minors, and, as an application of this principle, they have held that a decree against a minor can be set aside not only on the ground of fraud but also on the ground of gross negligence on the part of the minor's next friend or guardian. With great respect, therefore I am not able to follow the view taken in the Peshawar judgment, and the question which thus arises for determination is whether the conduct of the applicants in allowing the judgment of the learned District Judge to become final amounts to gross negligence.
10.On the footing that the cursory observations of the learned District Judge rejecting the plea of the appellants-applicants for the amendment of their plaint amount to a decision against them under Order VI, rule 17, C. P. C., it is clear that they had a strong case for challenging those observations in appropriate proceedings, and here I have to observe that Mr. Basharatullah conceded that the applicants had been negligent in not prosecuting their remedies against the judgment of the learned District Judge. In my opinion the conduct of the applicants amounts to gross negligence and, as the second applicant is a minor, applying the principle contained in the authorities discussed in para. 9, I hold that he was not barred by res judicata from filing the second amendment application in the trial Court, and as it was dismissed by an order which was perverse, the revision application has to be allowed.
11. Additionally, even though the applicants erred grievously in not filing a revision against the judgment of the learned District Judge their failure so too do not affect the suo rnotu revisional jurisdiction of this Court. I am aware that this jurisdiction is not to be exercised lightly, but the facts in the instant case are unusual. In the first place, the learned District Judge, has dismissed the claim of the applicants under Order VI, rule 17, C. P. C. not under that rule, but on the basis of an alleged admission by the learned counsel for the respondent. Secondly, I am satisfied that in concluding that the respondent had abandoned her alternative plea of inheritance through her husband the learned District Judge had inadvertently misconstrued the arguments of her learned counsel. Thirdly, he had overlooked the fact that by his cursory observations he was deciding a claim by a minor. In these circumstances, I do not think there can be a stronger case for the exercise of the suo motu revisional jurisdiction of this High Court. Accordingly, I set aside suo motu the observations of the learned District Judge that the first amendment application of the applicants was rightly dismissed by the trial Court. The result is that on this E ground also there is no impediment to this revision application, which is allowed on merits. As the case has been remanded by the learned District Judge to the trial Court, the applicants will file their amended plaint in the trial Court as soon as possible. Further, as a corollary to this order, the respondent is entitled to press her alternative plea of inheritance of the land in dispute through her deceased husband, therefore she is permitted to apply to the trial Court for framing an issue, the burden of which will be on her, with regard to this plea, and to this extent I also set aside suo motu the judgment of the learned District Judge re-settling the issues in the suit.
12.In the result, the revision is allowed, but as the applicants were also negligent in filing their amendment application, I do not make any order as to costs. AIR 1957 Mad. 626 AIR 1937 Sind 101 PLD 1962 Pesh. 171 AIR 1929 All. 346 AIR 1928 Lah. 178 AIR 1926 Pat. 528 AIR 1926 All. 3610 1 2 3 4 5 6 7