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Upendra Nath Das and ors. Vs. Daksha Yani Debya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal794
AppellantUpendra Nath Das and ors.
RespondentDaksha Yani Debya and ors.
Excerpt:
- .....order 32, in sch. 1, civil p.c. of 1908, the court in a suit for rent is competent to resort to a special procedure. it should be noted at the outset that the court has, under the wording of this clause, a discretion either to resort to this special procedure or not; that is to say, it is quite open to the court, even in a suit for rent, to adopt the normal procedure which is laid down in order 32, sch. 1, civil p.c., 1908. under what special circumstances the court would be justified in adhering to the normal procedure is not a matter which we need consider here. but the special procedure that is prescribed is a notice in a special form, and this form has got to be strictly adhered to in order that the result contemplated by this clause may be achieved. if this special procedure is.....
Judgment:
ORDER

1. Besides the two questions which have been formulated in this reference, another question has arisen upon the arguments that we have heard. That question is of a general nature and has from time to time been raised, namely, whether, when a guardian has been appointed in respect of a minor in any of the Courts below and that guardian does not appear in this Court in a proceeding in connexion with which a notice has been served on him, he must be regarded as continuing and as a guardian in whose place a fresh guardian cannot or ought not to be appointed by this Court, on the view that his appointment enures for the whole list. There are decisions which lay down that if a guardian has been appointed by the Court his appointment continues for all purposes of the suit and that so long as no other guardian is appointed he and he alone is competent, in case the suit ends in a decree, to prefer an appeal from that decree and is also competent generally to represent the minor in such proceedings as may be taken after the passing of the decree and in connexion with it. This however is so only so long as no other parson has been appointed guardian in respect of the minor. The cases do not lay down that a guardian appointed by the Court has an indefeasible right to continue for ever. When a guardian appointed in any of the Courts below does not appear in this Court, it is not possible for this Court to ascertain whether he is not appearing because he thinks that he would better serve the minor's interest by not appearing or because he has not been put in possession of funds to enable him to appear or for any other cause. And if, in order to safeguard the interests of the minor, this Court, on the failure of such guardian to appear, appoints another guardian in this Court, namely the Deputy Registrar, it hardly lies in the mouth of the appellant or the petitioner, as the case may be, to say that such an order cannot be made because it may be that the said guardian is not appearing for the reason that he thinks that by not appearing he would better serve the minor's interest. There can be no question that under Order 32, Rule 11, the Court may, for sufficient reason, remove a guardian. The law does not say what may or may not be a sufficient reason for this purpose. We are of opinion that it would generally speaking be a sufficient ground for the removal of the guardian and for the appointment of the Deputy Registrar in his place when the Court finds that such guardian has not put in any appearance in this Court, so that the Court is no in a position to judge whether the minor's interest is being really looked after. The only thing that may possibly be said is that there should be a formal order for removal. Here again, the law does not say that a formal order should be recorded. An appointment of a fresh guardian necessarily means the removal of the one previously appointed. But it would perhaps be better, where the Deputy Registrar is to be appointed guardian in circumstances stated above, to have a formal order for removal recorded before the order of appointment is made.

2. The questions formulated in the reference depend upon the meaning of Section 148, Clause (h), Ben. Ten. Act. That clause lays down that notwithstanding anything contained in Rule 4, Sub-rule (3), Order 32, in Sch. 1, Civil P.C. of 1908, the Court in a suit for rent is competent to resort to a special procedure. It should be noted at the outset that the Court has, under the wording of this clause, a discretion either to resort to this special procedure or not; that is to say, it is quite open to the Court, even in a suit for rent, to adopt the normal procedure which is laid down in Order 32, Sch. 1, Civil P.C., 1908. Under what special circumstances the Court would be justified in adhering to the normal procedure is not a matter which we need consider here. But the special procedure that is prescribed is a notice in a special form, and this form has got to be strictly adhered to in order that the result contemplated by this clause may be achieved. If this special procedure is observed, the result will be that the person upon whom the notice contemplated by this clause is served shall, unless the Court otherwise directs, be deemed to be the duly appointed guardian of the minor defendant 'for all purposes of the suit.' It may be conceded that the words 'for all purposes of the suit would include proceedings in continuation of the suit, namely, proceedings in appeal or such other proceedings as may directly arise out of the suit. It follows therefore that if such guardian prefers an appeal from the decree or appears as respondent in an appeal, which the plaintiff prefers from it, he continues as such guardian. But the question is what is to happen if he does not appear in the appellate Court, or what is an appellate Court to do if a minor becomes a respondent in rent appeal. The argument is twofold. It is said in the first place, that because the appointment of the natural guardian as, guardian under Section 148, Clause (h) of the Act is 'for all purposes of the suit,' no other guardian can or should be appointed, even if he does not appear. So far as this matter is concerned there is no reason to treat a rent appeal on a different footing from any other appeal, and the expediency of appointing the Deputy Registrar as guardian in such circumstances has already been explained. It is argued nextly that by reason of what has been said in Section 148, Clause (h) of the Act, when notice of the appeal is to be given, a notice should be given in the form prescribed in this clause so that, even if the guardian does not appear, he will be deemed to be the guardian. We are of opinion that such an interpretation cannot possibly be given to Clause (h), Section 148, which expressly prescribes a procedure which the trial Court only can follow upon the express terms of that clause.

3. As the guardian appointed by the Court below has not appeared in answer to the notice served on him by this Court he is removed, and the Deputy Registrar will be appointed such guardian on the petitioners depositing the necessary costs and the indemnity bond within three weeks from today. As regards the questions raised in the reference, the answers we give are: (1). The word 'suit' means the suit in the suit stage; and the expression 'for all the purposes of the suit' include appellate stage or stages of the suit. (2). The usual notice under the normal procedure has to be given to the guardian. Section 148, Clause (h), cannot be interpreted as meaning that the special procedure, which it prescribes, is available to any Court other than the trial Court or at any stage other than the suit stage. These two answers would show that, in our opinion, even in cases in which the special procedure was resorted to in a rent suit, an appeal or a revision case arising out of it should be dealt with in this Court on the same footing as all other appeals and revision cases.


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