1. Heard the learned counsel for the petitioners.
2. This petition challenges the order dated 9.1.2006 passed by the revisional court in a suit of petitioner where respondent No. 3 was shown as a minor defendant. Summons had been issued to the defendants for filing written statement and also fixing a date for framing issues. In pursuance to those summons, the defendants, who were major, had appeared and the father of the minor defendant had moved an application for is appointment as his guardian. The court without disposing of that petition or the application of the plaintiff-petitioner made in that behalf for appointment of guardian under Order XXXII Rule 3 C.P.C, has further proceeded in the suit and the orders were passed rejecting defendants' application for admitting the written statement. This order was passed by the trial court on the ground that more than ninety days had passed since the appearance of the defendants, beyond which no written statement could be taken on record. The revisional court set aside this order holding that the requirement of filling written statement would come only when the guardian of the minor defendant had been appointed and that stage had not reached in the suit.
3. From the aforesaid facts and circumstances it is evident that the defendant No. 3 was a minor and the first and prime duty of the court was the appointment of guardian of such minor and thereafter only further proceeding in the suit was to take place. The provisions of Order XXXII are mandatory and requirement of the same cannot be dispensed with. The provisions of Sub-Rules (1) to (4) of Order XXXII Rule 3 C.P.C as amended by the U.P State are relevant and reproduced as below:—
“(1) Where the 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.
(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed and shall also contain the names and addresses of all probable guardians including any guardian of the minor appointed or declared by an authority competent in that behalf, or the father or the other natural guardian of the minor, or where there is no father or other natural guardian the person in whose care the minor is.”
(4) The Court shall cause notice of such application to be served upon the minor as also upon all the probable guardians named in the application and such other person as it may deem fit calling upon them to file objections, if any, to the appointment of the proposed or any other probable guardian as guardian of the minor. In case any person himself desires to be appointed guardian of the minor instead of the proposed guardian, he shall furnish an affidavit verifying the fact that he has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
The Court shall after hearing the objections, if any, considering the respective claims of all persons, desirous of being appointed guardian including the proposed guardian, appoint such person as guardian of the minor as it may deem fit.
4. Provided that if the minor is under twelve years of age no such notice shall be issued to him.”
5. From the aforesaid provision it is more than obvious that it is a mandatory requirement of the procedure for the Court to be overcautious to protect the interest of a minor who has been made a party to the suit. Therefore, the Court cannot dispense with the mandatory procedural requirement and when the petition for such appointment of guardian of minor defendant No. 3 was moved before it by the plaintiff as well as the minor's father, a party defendant in the suit, those petitions should have been taken first and disposed of, whereafter only the Court could further proceed in the suit.
6. Here the trial court has not yet appointed the guardian of minor defendant No. 3 and had rejected the written statement filed by other defendants who also include the father of the minor. Since the stage of filing written statement has not yet arrived in the suit, there did not arise any question for rejection of the written statement at all. The operation of the provisions of Order VIII Rule 1 or Order VIII Rule 10 C.P.C was not there in the proceedings of the suit till the guardian of the minor defendant was actually appointed to file the written statement. Therefore, if the revisional court in such circumstances has interfered with the order of the trial court rejecting the written statement filed on record, I do not find any error in such order as to occasion an interference against it in the extra ordinary jurisdiction of this Court.
7. The stage in the suit for filing written statement by one or the other defendants would arise only after appointment of guardian by the court has been done and not before that.
8. The present petition, having no force, is hereby dismissed.
9. After the appointment of guardian, the proceedings in the suit shall be expedited.
10. Petition dismissed.