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Bachcha Vs. Smt. Lakhpati Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1263 of 1971
Judge
Reported inAIR1972All513
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rule 1
AppellantBachcha
RespondentSmt. Lakhpati Devi and ors.
Appellant AdvocateK.B. Sinha and ;K.B. Mathur, Advs.
Respondent AdvocateJ.N. Tewari and ;K.N. Tripathi, Advs.
DispositionRevision dismissed
Excerpt:
civil - appeal against minor - order 32 rule 1 of code of civil procedure, 1908 - appeal against minor is not incompetent - court has power to appoint guardian ad litem before the final decree is passed - appeal cannot become barred if appointment made after expiry of period of limitation. - .....the order of the district judge dated 7-8-71. the order mentions that vidya nand, the guardian ad litem appointed by the trial court has reported that he is unable to continue as the guardian on account of his ill-health and has prayed for the appointment of some other guardian of the minor. the court, therefore, removed vidya nand from the guardianship of the minor and appointed sri uma shan-ker dwivedi as guardian ad litem of the minor. it is not disputed that thereafter sri k. b. sinha was appointed guardian ad litem of the minor. an application had been made on behalf of the applicant alleging that in view of the minor respondent not being represented through the guardian ad litem, the first appeal filed by the plaintiff opposite parties was incompetent against him. it was argued.....
Judgment:
ORDER

J.S. Trivedi, J.

1. Plaintiff opposite parties had filed a suit for a declaration, injunction and demolition against the applicant and Opposite Parties 9 to 18. The applicant Bachcha was described as a minor under the guardianship of his father Krishna Kumar in the plaint. On the refusal oi Krishna Kumar, father of the applicant, Vidya Nand Vakil was appointed guardian ad litem by the Trial Court. The Trial Court dismissed the plaintiff's suit. The plaintiffs thereafter filed an appeal. In the decree of the Trial Court the applicant Bachcha alias Guddu continued to be described under the guardianship of his father Krishna Kumar. The memorandum of appeal filed by the plaintiff Opposite Parties arrayed the applicant as minor under the guardianship of his father Krishna Kumar. The plaintiff Oppo-site Parties thereafter moved an application on 19-5-71 in the Court of II Additional District Judge before whom the appeal was pending mentioning therein that Bachcha minor has been arrayed under the guardianship of his father on account of incorrect description in the certified copy of the decree. It was also mentioned in the application that Vidya Nand, the guardian ad litem has left the profession. It was, therefore, prayed that either the natural father i.e., Krishna Kumar should be appointed guardian of the applicant or some other person be appointed guardian ad litem. This application was disposed of by the order of the District Judge dated 7-8-71. The order mentions that Vidya Nand, the guardian ad litem appointed by the Trial Court has reported that he is unable to continue as the guardian on account of his ill-health and has prayed for the appointment of some other guardian of the minor. The Court, therefore, removed Vidya Nand from the guardianship of the minor and appointed Sri Uma Shan-ker Dwivedi as guardian ad litem of the minor. It is not disputed that thereafter Sri K. B. Sinha was appointed guardian ad litem of the minor. An application had been made on behalf of the applicant alleging that in view of the minor respondent not being represented through the guardian ad litem, the first appeal filed by the plaintiff opposite parties was incompetent against him. It was argued that the appeal has become time barred on the date when Sri K. B. Sinha was appointed guardian ad litem of the applicant. The II Additional District Judge, Allahabad rejected the applicant's application, hence this revision against the order of the II Additional District Judge.

2. The learned Counsel for the applicant has reiterated his objections in this Court and has placed his reliance on: (1) Tankeshwar Das v. Bhagaban Chandra Choudhury AIR 1968 Assam and Naga 61; (2) Sawan Ram v. Nachittar Singh, AIR 1952 Pepsu 63; (3) Arakhito Rauto v. Patito Rauto, AIR 1953 Orissa 343.

His contention is that the appointment of Vidya Nand as guardian ad litem by the Trial Court continued till he was removed by the order of the Lower Appellate Court and the memorandum of appeal filed against the minor under the guardianship of his natural father Krishna Kumar was in effect an appeal filed against a minor without proper guardian and was, therefore, a nullity.

Order 32, Rule 3, Sub-clause (5) reads thus:

'A person appointed under Sub-rule (1) to be guardian tor the suit for a minor shall, unless his appointment is terminated by retirement, removal or death continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree'. There can, therefore, be no doubt that Vidya Nand continued to be the guardian ad litem till he was removed from the guardianship of the minor. The question, however, is whether the appeal was incompetent and the Court was not competent to correct the memorandum by impleading the guardian ad litem or appointing another guardian ad litem and whether the addition of the guardian ad litem, after the period of limitation for filing the appeal had expired, will result in the dismissal of the appeal as time barred. In Tankeshwar Das's case (supra) the decree of the Trial Court was set aside in appeal against the minors who were not represented through a guardian. The mistake was discovered in the second appeal and it was then held by the Assam and Nagaland High Court that the first appeal being incompetent the High Court was reluctant to remand the case because the addition of the guardian ad litem in the first appeal after the decision of the appeal would be prejudicial to the minors. The High Court also remarked that the appeal had become barred by efflux of time. The facts of that case are quite distinguishable. In the present case, the first appeal is still pending.

3. Swami Ram's case (supra) no doubt lays down that the appointment of guardian ad litem can take effect only from the date on which it is made and an appeal presented by an authorised person as next friend of minor will become time barred if the guardian ad litem or proper next friend is added after the period or limitation.

4. In Dammar Singh v. Pirbhu Singh, (1907) ILR 29 All 290, a Bench of this Court had held that:

'The appointment of a guardian ad litem to a minor defendant of a person other than the certificated guardian amounted to no more than an irregularity and would not of itself vitiate either a decree passed in a suit or a sale consequent upon such decree'.

In the above case the decree was challenged on the ground that the guardian ad litem was a person other than the certificated guardian and the Court had acted in violation of the provisions of the Civil Procedure Code in appointing the guardian ad litem.

5. In Rup Chand v. Dasodha, (1908) ILR 30 All 55, on which reliance has been placed by the learned Counsel for the opposite parties, it was laid down that:

'Where a guardian ad litem of a defendant respondent was not made a party to an appeal filed by the plaintiff until after the period of limitation for filing such appeal had expired, it was held that the appeal was not for this reason time-barred'.

This was also a case where the mistake was discovered during the pendency of the appeal and application was made to rectify the mistake which was not done until after the period of limitation for the appeal had expired. Relying on an earlier decision of this Court it was remarked that the limitation runs from the date of the presentation of the memorandum of appeal and not from the date of the appointment of the guardian. The guardian ad litem was merely named in the record as the person appoint-ed by the Court to look after the interest of the minor. The statute does not prescribe any limitation for the appointment of a guardian or, removal of a guardian. Limitation is prescribed only for riling of a suit or appeal.

6. Raj Behari Lal v. Dr. Mahabir Prasad : AIR1956All310 , which is a reverse case and on which reliance has been placed lays down that:

'A minor defendant against whom a decree is passed cannot validly institute an appeal through a person other than the guardian ad litem appointed by the Trial Court, who has not resigned or died or been removed, provided that the Appellate Court may, on sufficient cause being shown, allow an appeal to be filed on behalf of the minor by a person other than the guardian ad litem appointed by the Trial Court by removing such guardian and appointing such other person as the guardian of the minor from the date of the institution of the appeal.'

The emphasis is on the words 'from the date of the institution of the appeal'. The Full Bench in the above case was considering whether the appointment of the next friend in appeal can refer back to the date of the institution of the appeal or not and after considering the case law on the subject, the view of this Court has been that the appointment can refer back to the date of the institution of the appeal.

7. It is settled law that a decree passed against a minor is a nullity, but there is no authority for the proposition that a suit filed against a minor or an appeal against a minor is incompetent and so long as the appeal is not incompetent it was within the power of the Court before which the suit or the appeal was pending to appoint a guardian of a minor before a competent decree could be passed.

8. For the reasons given above the order of the Court below does not suf fer from any error of law. This revision is accordingly dismissed with costs. The record of the Court below shall be returned to the Lower Appellate Court forthwith.


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