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Moti Chand Vs. Balram Das - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad
Decided On
Reported inAIR1933All116
AppellantMoti Chand
RespondentBalram Das
Excerpt:
- .....appears on the record in order to represent the minor but not in his capacity as a party to the' suit. a suit brought against a minor without a guardian would still be brought in time and the appointment of a guardian-ad-litem which must be made by the court after the institution of the suit would not be barred by time merely because the guardian is appointed by the court after the expiry of the prescribed period. although therefore when a decree is passed against a minor who has not been properly represented it is open to him to treat it as if he was not a party to the suit and to avoid the decree; it does not follow that the minor who does appear in court through another guardian or next friend cannot be heard, and it must be considered that he has no locus standi to appear except.....
Judgment:

Sulaiman, C. J.

1. The Court below has set aside an ex parte decree passed against a minor in a partition suit on the ground that the minor's father, who had previously given his consent to a deed of partition by sale in the lifetime of the grandfather, was not a fit and proper person for being appointed a guardian, that he was careless and did not appear on the date of hearing to defend the suit on behalf of the minor. In the connected application filed by the father on the ground that he was ill on the date and could not appear in Court it has also set aside the decree as against him on the main ground that in a partition suit the decree must be set aside against all the defendants. It has also removed the father' from the guardianship of the minor, and appointed the minor's mother as his guardian and allowed her to file a written statement on his behalf. We do not think that it can be said in revision that either the Court had no jurisdiction to pass the order that it has done, or it has acted with material irregularity in the exercise of its jurisdiction. The learned advocate for the applicant has relied strongly on the case of Eda Punnayya v. J. K. Kotayya A.I.R. 1920 Mad 713, and urged before us that the only remedy open to a minor who is not properly represented is to bring a separate suit, and that he cannot be allowed to be heard in the suit itself because he is not a party. We may point out that the view which has prevailed in this Court has been that a minor against whom a decree has been passed without the appointment of a proper guardian has several remedies open to him: he may in that very suit, if the facts justify, appeal against the decree, apply for rehearing under Order 9, Rule 13, apply for a review of judgment or apply for an order under Order 32, Rule 5(2) of the Code, and he has in addition, the ordinary remedy to bring a separate suit: BhagwanDayal v. Param Sukh Das (1917) 39 All 8, on pp. 10 and 11.

2. In our opinion when a minor is made a defendant in a suit it is the minor who is a party to the suit and not his guardian-ad-litem. The guardian-ad-litem's name appears on the record in order to represent the minor but not in his capacity as a party to the' suit. A suit brought against a minor without a guardian would still be brought in time and the appointment of a guardian-ad-litem which must be made by the Court after the institution of the suit would not be barred by time merely because the guardian is appointed by the Court after the expiry of the prescribed period. Although therefore when a decree is passed against a minor who has not been properly represented it is open to him to treat it as if he was not a party to the suit and to avoid the decree; it does not follow that the minor who does appear in Court through another guardian or next friend cannot be heard, and it must be considered that he has no locus standi to appear except through the guardian who has been appointed by the Court however incompetent, negligent and improper he may be. It is the duty of the Court to protect the interest of the minor and we think that it is open to the Court to entertain an application on the ground of the negligence of the guardian, and to remove him and appoint another, if he was not a proper guardian or was negligent. The summary remedy in the suit itself is very often the least expensive. There seems to be no justification for compelling the minor to file a separate suit and incur heavy expenditure and also run the risk of the proceedings being prolonged, and not to allow him to avail himself of the more expeditious summary remedy open to other defendants. 3. In this view of the matter we think that the Court below did not act without jurisdiction in entertaining the application. We accordingly see no force in this revision and we dismiss it with costs.


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