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Chandu Ram and anr. Vs. Kalyan Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberSecond Appeal No. 1 of 1959
Judge
Reported inAIR1961HP38
ActsCode of Civil Procedure (CPC) , 1908 - Order 3, Rule 1 - Order 32, Rule 7
AppellantChandu Ram and anr.
RespondentKalyan Chand and ors.
Appellant Advocate D.R. Chaudhary, Adv.
Respondent Advocate D.N. Vaidya, Adv.
DispositionAppeal allowed
Cases Referred and Bhikulal v. Kisanlal
Excerpt:
.....was binding on minor plaintiffs and was not liable to be set aside - appeal accepted. -..........predecessors-in-title in 1898 b. to secure a sum of rs. 3,000/-. kalyan chand, pratap chand and prakash chand, some of the representatives-in-interest of the mortgagees, were impleaded to that suit and as kalyan chand and pratap chand wereminors their brother prakash chand was appointed their guardian ad litem.a compromise was effected in that suit. shri mohinder lal advocate was appointed as a counsel by the aforesaid prakash chand on his behalf as also on behalf of the minors and an application for premission to enter into compromise was submitted to the court by the aforesaid advocate. the requisite permission was granted and in accordance with the terms of the compromise a decree was passed on 31-8-1956 for recovery of possession of the mortgaged property subject to a payment of.....
Judgment:

C.B. Capoor, J.C.

1. This is a defendants second appeal and is directed against a judgment and decree of the learned District Judge, Alandi and Chamba districts.

2. The appellants Chandu Ram and Nandu Ram had instituted a suit for recovery of possession of 35 bighas 18 biswas 5 biswansis land by redemption of a usufructuary mortgage made by their predecessors-in-title in 1898 B. to secure a sum of Rs. 3,000/-. Kalyan Chand, Pratap Chand and Prakash Chand, some of the representatives-in-interest of the mortgagees, were impleaded to that suit and as Kalyan Chand and Pratap Chand wereminors their brother Prakash Chand was appointed their guardian ad litem.

A compromise was effected in that suit. Shri Mohinder Lal Advocate was appointed as a counsel by the aforesaid Prakash Chand on his behalf as also on behalf of the minors and an application for premission to enter into compromise was submitted to the Court by the aforesaid advocate. The requisite permission was granted and in accordance with the terms of the compromise a decree was passed on 31-8-1956 for recovery of possession of the mortgaged property subject to a payment of Rs. 1,200/-.

Thereafter on 19-1-1957 the suit under consideration was filed by the aforesaid Prakash Chand in his own right and on behalf of his minor brothers Kalyan Chand and Pratap Chand for a declaration that they were not bound by the aforesaid compromise decree on the following grounds:

(i) that no application for permission to enter into compromise was made by Prakash Chand, the guardian ad litem of the minors.

(ii) that the application seeking the leave of the Court filed on behalf of the minors was ineffective.

(iii) that the terms were not to the benefit of the minors and

(iv) that Prakash Chand and pro forma defendants Nos. 3, 4 and 6 to 10 were not parties to the compromise.

3. The suit was resisted by the appellants on the grounds that the compromise was effected after obtaining the leave of the Court and was for the benefit of the minors and that a suit for mere declaration did not lie as they were in possession of the disputed property.

4. The learned trial Court held that Shri Mohinder Lal Advocate had applied for obtaining the leave of the Court to enter into compromise, that by virtue of the Vakalatnama executed in his favour he was competent to file the aforesaid application, that the compromise was brought about after obtaining the leave of the Court and that it was not proved that the terms of compromise were not beneficial to the minors. It further held that it was not necessary for the plaintiffs to have sought any further relief and that as plaintiff No. 3 and the pro forma defendants Nos. 3, 4 and 6 to 10 did not prefer any appeal against the compromise decree they had no right to challenge it by a separate suit. The suit, in consequence, was dismissed.

5. On appeal by the plaintiffs the learned District Judge upheld the finding that it was not necessary for the plaintiffs to have sought the relief for possession but reversed the others. He held that as plaintiff No. 3 did not make any application for permission to enter into compromise a compromise could not be thrust or forced upon the minors and as the terms of the Vakalatnama were not put to Prakash Chand the learned trial Court erred in relying upon them. In his opinion, the interest of the minors and that of plaintiff No. 3 and the other pro forma defendants were joint and the compromise decree was liable to be vacated intoto. Feeling aggrieved by the aforesaid decision, the appellants have come up in appeal.

6. The main question that crops up for decision is as to whether the minor plaintiffs were bound by the compromise decree. It was not in dispute that Shri Mohinder Lal was appointed as a counsel by Prakash Chand in his own right and as guardian ad litem of his minor brothers. The learned Advocate for the appellants has very fairly stated that by the terms of the aforesaid Vakalatnama the counsel had the power and authority to enter into compromise. Prakash Chand has merely stated that he did not file any application for permission to enter into compromise on behalf of the minors and that nobody consulted him for the filing of such an application.

He has not stated that after the execution of the Vakalatnama he had revoked the power conferred on the counsel to enter into compromise and I have, therefore, no hesitation in holding that Shri Mohinder Lal had the power to enter into compromise with reference to the case. Ex. P. D. is a copy of the application which was filed by Shri Mohinder Lal Advocate on behalf of the minors to seek permission of the Court to enter into compromise and it has not been questioned that the Court did grant the required permission.

7. Order 3, Rule 1, Civil Procedure Code, inter alia provides that any appearance, application in or to any Court required or authorized by law to be made or done by a party in such suit may except where otherwise provided by any law for the time being in force be made or done by the party in person or by his recognized agent of by a pleader on his behalf. It has been held in Chunilal Bhagwanji v. Kanmal Lalchand, AIR 1944 Bom 201 that the next friend of a minor can appoint a recognized agent.

A guardian ad litem stands on the same footing as the next friend. It has been contended on behalf of the respondents that the application for permission to enter into compromise filed by Shri Mohinder Lal Advocate was ineffective inasmuch as the leave of the Court could have been granted only on an application for permission filed by the guardian ad litem of the minors.

In support of the aforesaid contention reliance has been placed upon the provisions of Order 32, Rule 7(1), Civil P. C., and upon the following rulings : Hemangini Dasi v. Bhagwati Sundari Dasi, AIR 1923 Cal 685, Gulab Dei v. Vaish Motor Co. Etawah, AIR 1925 All 570, Badar Din v. Mt. Nathct AIR 1929 Lah 279, Abhay Kumar Singh. v. Kirit Narain Singh, AIR 1951 Pat 584, Deo Narayan Singh v. Siabar Singh, AIR 1952 Pat 461, Ramanathan Chettiar v. Veerappa Chettiar, AIR 1956 Mad 89, Karam Chand v. Narinjan Singh, AIR 1938 Lah 709 and Bhikulal v. Kisanlal, AIR 1959 Bom 260.

8. Order 32, Rule 7 (1) reads as below :

'No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement Of compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.'

The aforesaid provision of law merely requires that a. next friend or guardian for the suit shall not enter into any agreement or compromise on behalf of a minor without the leave of the Court. In attar words, it prohibits the next friend or guardian of the suit to enter into any agreement or compromise without the leave of the Court. This provision of law has been incorporated in the Civil Procedure Code to protect the interest of the minors. It does not enjoin that a counsel appointed by the next friend or guardian of the minors shall not be competent to enter into compromise on behalf of the minors even though he may have been authorized by the terms of the Vakalatnama to enter into compromise.

Adverting to the rulings relied upon on behalf of the appellants one finds that in all of them except file one reported in AIR 1929 Lah 279 no application was made to enter into compromise or to refer the case to arbitration and what was held was that in the absence of such an application a compromise or agreement could not be forced on the minors. In the AIR 1929 Lahore case the leave of the Court was granted under some misapprehension and it was held that such leave could be revoked.

9. The question as to whether a counsel ap-pointed by a next friend or guardian for the suit is competent or not to seek the permission of the Court to enter into compromise on behalf of the minors even if by the terms of the Vakalatnama executed in his favour the power to enter into com-promise is specifically conferred upon him did not going in any one of the aforesaid cases and was not decided therein.

Order 32, Rule 7 (1), Civil P. C., it has already been seen, does not place a ban on the right of a counsel duly appointed on behalf of a minor and authorized to enter into compromise to file an application on behalf of the minors for the permission of the Court to enter into compromise. So far as I am aware there is no provision of law imposing any such restriction. It is clear to me that if a counsel has the power to enter into compromise on behalf of a minor he is also competent to file an application seeking the permission of the Court to enter into compromise.

10. The compromise decree was thus binding on the minor plaintiffs and was not liable to be set aside. No appeal against the compromise decree was filed by Prakash Chand or for the matter of that by any other party to the redemption suit and Prakash Chand has no right to get the said decree set aside by a separate suit. The question as to whether the compromise decree was liable to be set aside so far as the interest of Prakash Chand or of the other proforma defendants is concerned if it had not been found to be binding on the minor plaintiffs does not arise.

11. In conclusion, the appeal is accepted, the judgment and decree of the learned District Judge are set aside and the suit of the plaintiffs is dismissed with costs throughout.


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