Smt. Katori Devi v. Nawab Singh & Others

Arun Tandon, J.:— Heard learned counsel for the appellant.

2. This is defendant's second appeal.

3. One Lochan Singh executed an agreement to sell in favour of respondent-plaintiff Nawab Singh on 1st July, 1995. Before the sale-deed could be executed in terms of agreement to sell, Lochan Singh expired. For specific performance of the contract, Nawab Singh filed original Suit No. 141 of 1996, impleading the mother of Lochan Singh, namely, Ramshree, as the defendant being the legal heir of Lochan Singh. In between, said Ramshree is stated to have executed a sale-deed in respect of same property in favour of Katori Devi and Sushila Devi. During the pendency of the suit, said Ramshree also expired and in her place, an application for substitution of grand-son of Ramshree namely, Shanker, who was minor at the relevant time, and was orphan, as his mother and father pre-deceased the grand mother, was filed through his sister, namely, Babali. On the substitution application, notices were issued. It appears that natural guardian, Babali did not respond to the notice and therefore, an application was made by the plaintiff for appointment of an advocate as Guardian to Shanker under order of the Court with reference to the provisions of Order XXXII Rule 3 of the Code of Civil Procedure. Before formal orders could be passed on the application, Babali responded and appeared to protect the interest of her minor brother. She appeared before the trial court and filed her written submissions. She also contested the proceedings in the suit filed by Navab Singh. The suit was ultimately decreed under judgment and decree dated 31st January, 2007. Not being satisfied, Shankar through his sister Babali as well as subsequent purchasers, namely, Katori Devi and Sushila Devi filed Civil Appeal No. 13 of 2007. The appeal filed has also been dismissed by the first appellate court vide judgement and order dated 31st May, 2008. Hence the present second appeal.

4. This present second appeal has been filed by subsequent purchaser of the property in question, namely, Katori Devi only. Shanker through his guardian, Babali has been impleaded as proforma respondent no. 2.

5. On behalf of the appellant, judgment and orders of the courts below are being challenged on the ground that despite application having been made under Order XXXII Rule 4(4) of the Code of Civil Procedure, no orders on the applications were passed by the court concerned appointing a guardian for the minor defendant, Shanker and Smt. Babali therefore, had no right to represent the interest of Shanker. The decree was passed against the minor in absence of any guardian having been appointed under Order XXXII Rule 3 of the Code of Civil Procedure and therefore be declared as null and void.

6. I have considered the submissions made by the learned counsel for the appellant and have examined the records of the present second appeal.

7. The trial court framed issue no. 9 for deciding as to whether the suit as filed by the plaintiff is hit by Order XXXII Rule 3 of the Code of Civil Procedure or not.

8. This Court finds that suit was instituted against Smt. Ramshree. After her death, Shanker, who was minor was substituted through her real sister. Notices were issued to the substituted legal heir through Babali. However, Smt. Babali did not respondent. Plaintiff therefore, made an application under Order XXXII Rule 4(4) read with Section 151 of the Code of Civil Procedure for a guardian being appointed for Shanker. Before orders could be passed on the said application, Smt. Babali appeared as the Guardian of Shanker and filed her written statement, she also contested the proceedings. At no point of time, any objection was raised by the appellant qua substitution of Shanker, who was minor through her real sister in whose custody, he was residing. The suit was decreed by the trial court vide judgment and decree dated 31st January, 2007. Against the said decree, civil appeal no. 13 of 2007 was filed by Shanker through her sister along with Smt. Katori Devi and Smt. Sushila Devi and the plaintiff was impleaded as respondent in the appeal. The first appellate court considered the objection with regard to the orders under Order XXXII Rule 4(4) having not been passed on the application made by the plaintiff being paper no. 98-A and held that present appeal itself has been filed by Shanker through her natural guardian as the sister and at no point of time, any objection was raised, even when substitution was directed and amendments were made in the plaint itself before the trial court. The Court, therefore, held that in these circumstances, it cannot be said that sister was not looking after the interest of her minor brother or that she had any adverse interest in the property vis-a-vis minor brother Shanker. The first appellate court therefore, held that objection in that regard by the appellant was too technical in nature and cannot be used as a tool to defeat the lawful decree of the court below.

9. Before this Court the same plea has been raised qua orders being not passed on application being paper no. 98-A made under Order XXXII Rule 3 & 4 of the Code of Civil Procedure and therefore, the judgement and decree of the courts below be declared null and void.

10. This Court may record that Shanker has not chosen to file any appeal against the judgement and decree of the first appellate court and he has permitted the order become final.

11. For appreciating the controversy, it would be worthwhile to reproduce Order XXXII Rule 3, 4 and 4A as substituted in the State of Uttar Pradesh, which reads as follows:

“ORDER XXXII

SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

3. Guardian for the suit to be appointed by Court for minor defendant. — (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 fit person to be so appointed.

(4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, [upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian] of the minor, or, where there is [no father, mother or other natural guardian], to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

[(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.]

[(5.) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.]”

4. Who may act as next friend or be appointed guardian for the suit. —(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit:

………………

HIGH COURT AMENDMENTS

Allahabad. — (a) In Order XXXII, for rule 4, substitute the following rule, namely: —

“4.(1) Where a minor has a guardian appointed or declared by competent authority no person other than such guardian shall act as next friend, except by leave of the Court.

(2) Subject to the provisions of sub-rule (1) any person who is of sound mind and has attained majority may act as next friend of a minor, unless the interest of such person is adverse to that of the minor, or he is a defendant, or the Court for other reasons to be recorded considers him unfit to act.

(3) Every next friend shall, except as otherwise provided by clause (5) of this rule, be entitled to be reimbursed from the estate of the minor any expenses incurred by him while acting for the minor.

(4) The Court may, in its discretion, for reasons to be recorded, award costs of the suit, or compensation under Section 35A or section 95 against the next friend personally as if he were a plaintiff.

(5) Costs or compensation awarded under clause (4) shall not be recoverable by the guardian from the estate of the minor, unless the decree expressly directs that they shall be so recoverable.”

4A. (1) Where a minor has a guardian appointed by competent authority no person other than such guardian shall be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor's welfare that another person be appointed.

(2) Where there is no such guardian or where the Court considers that such guardian should not be appointed it shall appoint as guardian for the suit the natural guardian of the minor, if qualified, or where there is no such guardian the person in whose care the minor is, or any other suitable person who has notified the Court of his willingness to act or failing any such person, an officer of the Court.

Explanation. — An officer of the Court shall for the purposes of this sub-rule include a legal practitioner on the roll of the Court.”

12. From conjoint reading of Order XXXII Rule 3, 4 and 4A as applicable in the State of Uttar Pradesh, it would be apparently clear that if there is no guardian appointed by a competent authority and the Court considers that such guardian should not be appointed, or the Court feels that such appointed guardian should not act as the guardian for the minor in the suit, the natural guardian of the minor, if qualified or where there is no guardian, person in whose care the minor is, or nay other suitable person, who has notified the Court of his willingness to act or failing any such person, an officer of the Court can be appointed as the Guardian. What follows from the aforesaid is that the Court is under legal obligation to appoint the person declared to be the guardian of the minor by a competent authority at the first instance and if no such appointed guardian is available or when the Court finds that such appointed guardian should not act, it has to appoint the natural guardian of the minor, if qualified, and where there is no such guardian the person in whose care the minor is as the guardian.

13. In the facts of the present case, it is apparently clear that the minor Shanker was in the care of his real sister as the father and mother had predeceased the grand parents. Further the minor was impleaded through is real sister and no objections were filed to such impleadment at any point of time by the respondent-defendants. Suit was contested all along and having lost before the trial court. Civil appeal was also preferred through the same guardian, namely, his real sister. The civil appeal has also been dismissed. The Subsequent purchaser, who has preferred the second appeal objects to the acting of the real sister as the guardian.

14. In the facts of the present case the Court records that the real sister had right to act as the guardian of the minor brother in view of Order XXXII Rule 4A of the Code of Civil Procedure and therefore it is in this background that appropriate orders were not passed on the application being paper no. 98A, as the real sister responded after substitution to represent the interest of minor brother, Shanker. It is legally to be presumed that she was authorised by the Court to act as such. In the opinion of the Court, objection now raised by co-defendant is hyper technical in nature and the courts below are legally justified in rejecting the same.

15. On a simple reading of the aforesaid provision, this Court may record that it is only an enabling provision, which permits the representation of the minor in a suit, in case it is found that natural guardian is not representing the interest of minor to the best of his interest or they have interest themselves in the dispute in question. Such enabling provisions cannot be read so as to suggest that if interest of minor is already represented by a natural guardian, even then an application under Order XXXII Rule 3 of the Code of Civil Procedure is required to be filed and any orders on such application are mandatory. If the interest of minor is protected by a natural guardian and there is no challenge either by the minor or by the plaintiff to such representation of the minor by the natural guardian, the provisions of Order XXXII Rule 3 of the Code of Civil Procedure will have no application.

16. Learned counsel for the appellant contends that there has to be an order by the Court, permitting the natural guardian to represent the interest of the minor.

17. I am of the considered opinion that such orders are procedural in natural and cannot be permitted to be used to defeat the judgment and decree of the Court at the behest of a third person, who is neither the minor nor his guardian of the minor, more so when there is nothing on record to establish that the natural guardian was not acting in the best interest of the minor or that she had some interest in the suit proceedings.

18. Learned counsel for the appellant has placed reliance upon the following various judgements in support of the case:

(1) Ram Chandra Arya v. Man Singh Reported in AIR 1968 SC 954,

(2) Sri Arjun Singh v. IInd Addl. Civil Judge, Aligarh passed in Civil Misc. Writ Petition No. 45549 of 1993, decided on 20th December, 1993,

(3) Gurpreeet Singh v. Chatterbhuj Goel, reported in AIR 1992 Punjab and Haryana 95,

(4) Bachcha v. Lakhpali Devi, reported in 1972 AIR (All) 513.

19. The judgements relied upon by the learned counsel for the appellant are clearly distinguishable in the facts of the present case, wherein the intent and scope of Order XXXII Rule 4A of the Code of Civil Procedure was neither under consideration nor has been examined.

20. It is settled law that all Courts of law are established for furtherance of interest of substantial justice and not to obstruct the same on technicalities. Reference —Jai Jai Ram Manohar Lal v. National Building Material Supply, (1969) 1 SCC 869 : AIR 1969 SC 1267, wherein it has been held that if substantial justice and technicalities are pitted against each other, the cause of substantial justice should not be defeated on technicalities. No procedure in a Court of law should be allowed to defeat the cause of substantial justice on some technicalities. Reference-Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46.

21. This Court may record that the findings recorded by the courts below in respect of right of Babali to represent Shanker under the impugned judgment has become final between the plaintiff and defendant-Shanker, as he has not chosen to file any second appeal.

22. No other point was pressed. No substantial questions of law arises. The second appeal is dismissed.