Report No. 69

III. English Law

16.121. English law.-

According to the English law, gross negligence as well as fraud prevents the operation of the bar of res judicata.

16.122. In Macpherson on Infants1 we find the following passage:

"An infant plaintiff, though thus favoured in the course of the suit, is as much bound by a decree and by all the proceedings in a cause as a person of full age, and cannot, nor can his representatives, open the proceedings, unless upon new matter, or on the ground of gross laches, or of fraud and collusion, which will annual the proceedings of the Courts of Justice as much as any other transactions."

1. Macpherson on Infants, p. 386, quoted in ILR 22 Cal 8 (11).

16.123. In Simpson on the Law of Infants1 we find the following statement of the law.

"A decree may also be impeached where there has been gross negligence by the next friend in the conduct of the infant's case, or new matter discovered since the date of the decree".

1. Simpson, 1st Edn., p. 475(1), quoted in ILR 22 Cal 8 (11, 12).

16.124. In the case of In re Hoghton,1 Sir R. Malin V.C. says:-

"The question which I have to decide is whether this infant, on whose behalf a decree was taken by consent in 1867, is to suffer by any negligence or want of knowledge on the part of her then next friend. I am clearly of opinion she cannot be called upon to endure that inconvenience. The proposition that an infant of tender years may have her whole fortune wrecked by the neglect of her friend is so monstrous that I. cannot pay attention to2it. She is entitled to have a next friend who is diligent and who will protect her interests."

1. Hoghton (in re:), 1874 ILR 18 Eq 573 (576).

2. Emphasis supplied.

16.125. There are other English cases also, which have been exhaustively discussed in the judgment in the Patna case.1

1. Kainakshya v. Baldeo Singh, AIR 1950 Pat 97 (107, 109).

16.126. The brief result of the above discussion is that the majority of the High Courts have taken the view that the gross negligence of a guardian is a ground for setting aside the decree. In holding so, they have mainly based this right on the principles of justice, equity and good conscience. They consider section 44, as it stands at present, as a permissive provision, and not as a prohibitory one. The minority view is to the contrary.

IV. The Principle

16.127. Aspect of justice.-

So much as regards the case law on the subject. Examining the matter from the angle of principle, we may state that the aspect of justice is an important one. Prima facie, one would have thought that if a minor is not effectively represented in the original litigation, then he is not represented at all, and the case is not dissimilar to the case where a decree has been passed against a minor without any representation. Thus, the considerations of justice are in favour of adopting the majority view.