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Ram Pari Vs. Sita Ram Pandey and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 1900 of 1965
Judge
Reported inAIR1973All571
ActsCode of Civil Procedure (CPC) , 1908 - Order 32, Rule 3
AppellantRam Pari
RespondentSita Ram Pandey and ors.
Appellant AdvocateGyan Chandra Dwivedi, Adv.
Respondent AdvocateRaja Ram Agarwal and ;Bharatji Agarwal, Advs.
DispositionAppeal dismissed
Excerpt:
.....this court that failure to serve the summons as well as the notice is a failure to follow the procedure and is evidently an irregularity and that in following the procedure the court has the necessary jurisdiction; ram hit singh air1958all437 ). 6. assuming that there have been, alleged irregularities in the appointment of the guardian-ad-litem in the previous suit as to entitle the plaintiff to re-open the question he cannot by merely showing irregularities succeed unless he can satisfy the court that he has been prejudiced and has been deprived of some good defence which was open to him. ganga prasad air1926all545 .both the courts below considered this aspect of the matter as well......was not negligent in his act and further no prejudice was caused to the plaintiff dismissed the suit. on appeal by the plaintiff the findings recorded by the trial court were affirmed and the appeal was dismissed. the plaintiff has now come to this court in second appeal.4. it was urged by the learned counsel for the appellant that the provisions of order 32 of the code of civil procedure were not complied with while appointing the guardian-ad-litem of the plaintiff, who was at the relevant time a minor, and contended that no notice to the minor and to the proposed guardian was given by the court as required by sub-clause (4) of rule 3 of order 32, civil p. c. he, therefore, contended that the appointment of the defendant no. 4 as guardian-ad-litem in the case was illegal and that in.....
Judgment:

T.S. Misra, J.

1. This is a plaintiff's appeal which arose in the following circumstances. Sita Ram defendant had commenced an action for partition of the property in suit in the Court of Munsif, Deoria, being suit No. 3171 of 1957 -- Sita Ram v. Shital Pandey and others. The present plaintiff appellant was also made a party to that suit alleging that Sita Ram had l/3rd share in it. That suit was decreed. On appeal the decree passed in that suit was confirmed. The present plaintiff then commenced another action which has given rise to this appeal for cancellation of the decree passed in the suitNo. 3171 of 1957 and the appellate decree dated 21st August, 1961, inter alia, on the grounds that he was a minor and the appointment of the alleged guardian in the suit No. 3171 of 1957 by the Court was illegal and without jurisdiction. He contended that the defendant No. 4 was appointed his guardian-ad-litem but he did not take proper defence in the case nor did he produce necessary evidence on behalf of the minor which resulted in miscarriage of justice. He was thus greatly prejudiced and sought cancellation of the aforesaid decrees.

2. The suit was resisted by the defendant No. 1 Sita Ram. He denied the allegations made on behalf of the plaintiff and contended that the appointment of the guardian-ad-litem was legal and in accordance with law. He also alleged that no prejudice was caused to the plaintiff. The guardian-ad-litem was not negligent and the plaintiff was, therefore, not entitled to the reliefs claimed.

3. The trial Court having found that DO illegality was committed in the appointment of the guardian-ad-litem of the plaintiff in the suit No. 3171 and the guardian-adlitem was not negligent in his act and further no prejudice was caused to the plaintiff dismissed the suit. On appeal by the plaintiff the findings recorded by the trial Court were affirmed and the appeal was dismissed. The plaintiff has now come to this Court in second appeal.

4. It was urged by the learned counsel for the appellant that the provisions of Order 32 of the Code of Civil Procedure were not complied with while appointing the guardian-ad-litem of the plaintiff, who was at the relevant time a minor, and contended that no notice to the minor and to the proposed guardian was given by the Court as required by Sub-clause (4) of Rule 3 of Order 32, Civil P. C. He, therefore, contended that the appointment of the defendant No. 4 as guardian-ad-litem in the case was illegal and that in fact the Court had no jurisdiction to appoint him as such. The learned counsel for the respondent, however, urged that the procedure laid down in Rule 3 of Order 32 was followed and at any rate non-observance of the procedure would amount to mere irregularity and not an illegality.

5. Sub-clause (1) of Rule 3 of Order 32, Civil P. C. requires that where a defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. Obviously, therefore, before appointing a guardian for the minor the Court must satisfy itself that the defendant, who is alleged to be a minor, is really a minor. On being satisfied of the fact of the minority of the defendant the Court shall appoint a proper person to be guardian for the suit for such minor. Sub-clause (2) postulates that an order for the appointment of a guardian in the suit maybe obtained upon application by the plaintiff. On such application the Court must first issue a notice to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, a notice to the father or other natural guardian of the minor or to the person in whose care the minor is. Thereafter the Court must hear the objections, if there be any, and pass suitable orders in the matter. In the instant case it is not disputed that the present plaintiff appellant was a minor at the time when the suit No. 3171 of 1957 was filed. It has come in evidence that notices Exs. 3 and 5 were issued by the Court addressed to the mother of the plaintiff as also to the present plaintiff. These notices must have been issued on the application moved for the appointment of a guardian-ad-litem of the plaintiff, who was then a minor. Ex. 6 is the report of the process-server on the notice Ex. 3. It is also not disputed that the Court did ultimately appoint the defendant No. 4, Sri Om Prakash Vakil of Deoria, as the guardian-ad-litem of the present plaintiff appellant in that suit. From the report of the process-server, Ex. 6, it appears that the notice, Ex. 3, could not be personally served on the addressee because the lady was reported to be purdahnashin and did not appear before the process-server. The notice was, therefore, affixed at the main door of the house said to have been occupied by the mother of the plaintiff. Neither the plaintiff nor the defendant No. 1 filed any other document which could throw light on the procedure adopted by the Court in appointing Sri Om Prakash Vakil as guardian-ad-litem of the present plaintiff. The only documents which have been filed in this connection are Exs. 3, 5 and 6 referred heretofore. On the basis of these three documents it was urged that the Court while appointing Om Prakash guardian-ad-litem did not follow the procedure laid down in Order 32, Rule 3, Civil P. C. I am unable to accept this contention. The plaintiff sought the cancellation of the decree on the ground that he was not properly represented in the suit No. 3171 of 1957 and was thereby greatly prejudiced. He had to make out that case by producing the relevant evidence on the record. The three documents, Exts. 3, 5 and 6, do not bear out the contention of the plaintiff. They merely go to prove that twice notices were issued by the Court inviting objections in relation to the appointment of guardian-ad-litem. Ex, 6 is the report of the process-server from which it cannot be inferred that the Court committed grave illegality in making appointment of the guardian-ad-litem. It has been the consistent view of this Court that failure to serve the summons as well as the notice is a failure to follow the procedure and is evidently an irregularity and that in following the procedure the Court has the necessary jurisdiction; thedefect lies in the mode adopted to exercise it and such an order cannot be said to be a mere nullity. (See Inder Pal Singh v. Babu Singh : AIR1956All218 and Abbiman Singh v. Ram Hit Singh : AIR1958All437 ).

6. Assuming that there have been, alleged irregularities in the appointment of the guardian-ad-litem in the previous suit as to entitle the plaintiff to re-open the question he cannot by merely showing irregularities succeed unless he can satisfy the Court that he has been prejudiced and has been deprived of some good defence which was open to him. In this view I am fortified by the Full Bench decision of this Court in Ram Rekha v. Ganga Prasad : AIR1926All545 . Both the courts below considered this aspect of the matter as well. The trial Court held that the guardian-ad-litem was not negligent in his duties in defending the plaintiff and no injustice was caused to the plaintiff. The appellate Court below, on a careful scrutiny of the evidence on record, also came to the same conclusion and held that the guardian-ad-litem had not been grossly negligent as alleged and that the case of the appellant was not prejudiced in any way. The concurrent findings of both the courts below that the guardian-ad-litem was not negligent and that the plaintiff was not prejudiced in any manner whatsoever as alleged are findings on fact and are conclusive. The plaintiff has not made out any ground warranting interference with these findings on fact.

7. No other point was pressed.

8. In the result the appeal fails and is accordingly dismissed with costs.


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