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Supreme Court in its judgment dated July 16 observed that, amended Order XXXII Rule 3, under superintendence of Madras High Court is more rigorous and elaborate given to its wider jurisdiction on the original side.

It upheld the High Court’s decision of summoning the original records in the suit and finding whether or not a guardian of the minor defendant was appointed in accordance with the procedure prescribed in Order XXXII Rule 3, even in the absence of a specific contention being raised by the petitioners. Court reiterated the wide ambit of powers High Court can exercise under Article 227 of the Constitution.

A Division Bench of Justice Indira Banerjee and Justice V. Ramasubramanian, while dismissing the SLP, made significant observations over Order XXXII Rule 3A CPC protecting Rights of a Minor,

“It may be of interest to note that Rule 3-A was inserted in Order XXXII by CPC Amendment Act 104 of 1976. It is this Rule that introduced for the first time into the Code, the question of prejudice to the minor. But this Rule 3-A applies only to cases where the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor.

This amendment was a sequel to certain conflicting opinions on the question as to whether a decree passed in cases where the minor was represented by a guardian who had an interest in the subject matter of the suit adverse to that of the minor, was void or voidable.

In other words the Parliament chose to introduce the element of prejudice, specifically in relation to one category of cases under Order XXXII, Rule 3A.”

With respect to the contention that High Court could not have set-aside the ex-parte decree by invoking powers under Article 227, the Top Court said, it is too well settled that the powers under 227 are in addition to and wider than the powers under Section 115 of the CPC, 1908. Reliance was placed in this regard to the observations in Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675.

With respect to the contention that the party has not been vigilant in terms of defending its execution proceedings, Court said while the parties can afford to remain negligent, the Courts cannot – referred to the Trial Court adjudication in the matter, stating,

“The manner in which the Trial court disposed of the application under Order XXXII Rule 3, is without doubt – improper, and cannot at all be sustained, especially in the teeth of the Madras Amendment”

What is Madras Amendment and how does it vary from the provision under Central Act; CPC, 1908? Court says a comparison of the two Rules reflect that the Rules applicable to Civil Courts subject to the superintendence of Madras High Court are more elaborate and rigorous – sub rules (4), (5) and (6) and a part of sub rule (7) of Order XXXII Rule 3 marks additional requirements which are:

• When an application for the appointment of a guardian is by the plaintiff, it shall set forth in the order of their suitability, a list of persons with their full addresses for service of notice in Form No. 11-A set out in Appendix H, who are competent and qualified to act as guardian for the minor defendant
• The application for appointment of a guardian should be supported by an affidavit, not merely verifying the fact that the proposed guardian has no interest in the matters in controversy adverse to that of the minor, but also stating additional particulars including the name and address of the de-facto guardian and the names and addresses of other suitable persons, whenever a natural or de-facto guardian is not permitted to act.

“The rigorous nature of the Madras Amendment to Rule 3 of Order XXXII, is perhaps to be attributed to the wider jurisdiction that the High Court exercised on its original side, under clause – 17 of the Letters Patent and the parens patriae jurisdiction that a Court normally exercises while dealing with cases of minors.

Therefore, we find no illegality in the action of the High Court in summoning the original records in the suit and finding out whether or not a guardian of a minor defendant was appointed properly in accordance with the procedure prescribed in Order XXXII Rule 3, even in the absence of a specific contention being raised by the petitioners,” the bench added.

Case Title: KP Natarajan v. Muthalammal