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Latafat Ali Khan v. Muhammad Yar Khan
Summary of the Provided Legal Opinion
Factual and Procedural Background
The plaintiffs sued for pre-emption of a zamindari property and a house. The defendants (vendees) were minors. A relation refused to act as guardian and the trial Court appointed Mr. Makhan Lal, a vakil of the Court, as guardian ad litem for the minors. The suit was contested and decreed against part of the zamindari and a house. The guardian ad litem did not prefer an appeal. A memorandum of appeal was filed on behalf of the minors by their father, Wilayat Ali, which contained a note stating that Babu Makhan Lal vakil had been appointed guardian ad litem by the Court and that, "as he is not ready to prefer this appeal, he has been included in the array of the respondents."
No formal application was made by the father to remove the court-appointed guardian and have himself appointed. At the hearing of the appeal it does not appear that Mr. Makhan Lal was present. The appellants' advocates suggested that the person through whom the appeal had been filed should be appointed guardian ad litem for the purpose of the appeal. The learned Judge refused to take such a step, holding he had no power to do so, and dismissed the appeal as incompetent but proceeded to record opinions on the merits. The father of the minor defendants filed a second appeal and the same preliminary objection was raised before the appellate Court whose opinion is summarized here.
Legal Issues Presented
- Whether an appeal preferred by a person other than the guardian ad litem appointed by the trial Court is competent.
- Whether a court (particularly an appellate court) has power to remove a trial-appointed guardian ad litem and appoint another person to represent the minor for the purpose of an appeal.
- Whether defects in presentation of an appeal by a person not formally appointed as guardian ad litem can be cured under Section 153, Civil Procedure Code.
- Whether the trial Court, after a decree has been passed (and thus to some extent is functus officio), can be approached to remove the guardian ad litem and appoint a fresh guardian so that an appeal may be preferred.
Arguments of the Parties
Appellant's Arguments
- The appellants (through their advocates) suggested that the defect of the appeal being preferred by a person other than the court-appointed guardian could be remedied by ordering that the person through whom the appeal had been filed (the father) be appointed guardian ad litem for the purpose of the appeal.
Respondent's Arguments
The opinion does not contain a detailed account of the respondents' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Jwala Dei v. Pirbhu [1891] 14 All. 35 | The guardian ad litem appointed for a minor for the purposes of a lis continues to represent the minor for all ramifications of that lis, including appeals, until removed by the Court or otherwise discharged. | The Court relied on Straight, J.'s formulation to state the settled principle that a court-appointed guardian ad litem continues to represent the minor throughout the litigation unless removed. |
| Bawan Das v. Bishnath [1899] A.W.N. 203 | Suggested that the remedy where a guardian does not prefer an appeal is to apply to the lower appellate Court for an order removing the guardian and then present a fresh appeal together with an application under the Limitation Act (as an observation). | The Court noted this suggestion, observed it was not necessary to the decision in that case, and discussed its limited utility in light of subsequent procedural provisions (e.g., Section 153, Civil P.C.). |
| In the matter of the application of Sukhdeo Rai [1905] 2 A.L.J. 489 | Accepted the principle that the guardian ad litem appointed by the trial Court continues to represent the minor until removed. | Used as part of a series of authorities to show the settled position of law regarding the continuity of a court-appointed guardian ad litem. |
| Shambhu v. Kanhaiya A.I.R. 1922 All. 382 | Accepted the continuing authority of the trial-appointed guardian ad litem over appeals unless removed by Court. | Cited among subsequent cases confirming the principle that a guardian ad litem continues to represent the minor. |
| Bhagelu v. Dharma A.I.R. 1924 All. 79 | Further authority accepting the same principle about the continuity of representation by a guardian ad litem. | Cited as an additional confirmation that a guardian ad litem for a minor continues in office until removed by the Court. |
| Fani Bhusan v. Surendra Nath Das A.I.R. 1921 Cal. 476 | After the passing of a decree the trial Court's jurisdiction in certain respects (including removal of a guardian and appointment of a fresh guardian for purposes of appeal) may be limited because the Court becomes functus officio for that purpose. | The Court relied on this authority to explain why it may be inappropriate and inconvenient to apply to the trial Court to appoint a fresh guardian after decree; and why the appellate route is preferable. |
Court's Reasoning and Analysis
The Court began by distinguishing the procedural positions of minor plaintiffs and minor defendants under Order 32: a minor plaintiff may sue through a next friend without court appointment, whereas a guardian ad litem for a minor defendant must be appointed by the Court and, once appointed, continues in office unless he dies, desires to retire, neglects his duty, or there is other sufficient ground for removal (Order 32, Rule 11(1) referenced).
Relying on established authorities (including Jwala Dei and subsequent cases), the Court treated it as settled that the guardian ad litem appointed for a minor defendant by the trial Court continues to represent the minor even on appeal until removed by the Court. The Court observed an earlier suggestion in Bawan Das that the proper remedy where the guardian will not prefer an appeal is to apply to the lower appellate Court for the guardian's removal and then present a fresh appeal; but characterised that remark as not strictly necessary to that decision.
The Court then addressed the practical difficulty that after a decree the trial Court's rules under Order 32 do not expressly apply to execution proceedings and the trial Court may be functus officio for the purpose of removing the guardian and appointing a fresh guardian (citing Fani Bhusan). For this reason the Court considered it inappropriate and inconvenient to require application to the trial Court after decree. Instead the Court explained the preferable procedure: another next friend or person interested in the minor's welfare may prefer an appeal within the time allowed and accompany it with an application to the appellate Court seeking removal of the guardian and appointment of the applicant in his place. If ultimately granted, the appeal could be treated as properly filed.
The Court noted the procedural development represented by Section 153, Civil Procedure Code, which permits the curing of certain defects in presentation of suits/appeals. The Court held that defects arising from an appeal being preferred by a person not yet formally appointed guardian could be cured under Section 153 (a remedy not available under the old Code when Bawan Das was decided).
Applying these principles to the present case, the Court found a key deficiency: no formal application for removal of the guardian ad litem had been made, there was no suggestion of grounds for removal as contemplated by Order 32, Rule 11, and the guardian had not been given notice to oppose any such removal. At best, the guardian's unwillingness to prefer an appeal could be inferred, but the District Judge was not bound to entertain an oral application made at a late stage without affording the guardian an opportunity to respond. The Court concluded that although the District Judge did not lack jurisdiction to entertain such an application, he was justified in refusing to do so because the suggestion was late and unsupported by grounds sufficient for removal of the guardian.
Holding and Implications
Holding: The appeal is DISMISSED.
Direct consequences: the appeal was dismissed. The Court initially directed dismissal "with costs" (paragraph 10), but taking into consideration the circumstances under which the appeal was preferred and the grounds of decision, the Court directed that the parties should bear their own costs in both the lower appellate Court and in this Court (paragraph 11). The direct effect on the parties is therefore dismissal of the appeal and the allocation of costs such that each party bears their own costs in both Courts.
Broader implications: the opinion reaffirms established principles rather than laying down a new precedent. It restates the settled law that a court-appointed guardian ad litem for a minor defendant continues to represent the minor until removed by the Court, explains the appropriate procedural route for seeking removal and appointment of a new guardian (preferably by application in the appellate Court coupled with an appeal), and notes that Section 153, Civil P.C. can cure certain defects in presentation. The Court did not extend the law beyond these points.
1. A preliminary objection is taken to the hearing of this appeal and for the purposes of this objection only a few facts need be mentioned.
2. The plaintiffs instituted a suit for pre-emption of a zamindari property as well as a house. The defendants vendees were minors. A relation of theirs refused to act as their guardian, and the Court appointed Mr. Makhan Lal, a vakil of the Court, as the guardian ad item of the minors, The case was fought out and was decreed both as against part of the zamindari and a house. The guardian ad litem did not prefer any appeal from that decree; but a memorandum of appeal was filed on behalf of the minors by their father Wilayat Ali. A note was added to the memorandum of appeal to the effect that in the original suit, Babu Makhan Lal vakil was appointed the guardian ad litem of the appellants by the Court. As he is not ready to prefer this appeal, he has been included in the array of the respondents.
3. There was no formal application filed by the father of the appellants for the removal of the guardian ad litem and for the appointment of himself in his place. Nor does it appear that Mr. Makhan Lal appeared at the time of the hearing of the appeal. During the course of the argument a suggestion was thrown out by the advocates for the appellants that the defeat of the appeal having been preferred by a person other than the guardian ad litem might be remedied by ordering that the person through whom the appeal had been filed should be appointed guardian ad litem for the purpose of the appeal. The learned Judge thought that he had no power to do this and refused to take any such step. He dismissed the appeal as being incompetent. But to avoid any further remand he proceeded to record his opinions on the merits as well. The father of the minor defendants has now filed a second appeal and he is met by the same objection before us.
4. In the trial Court the position of a minor plaintiff is slightly different from that of a minor defendant, inasmuch as under O 32 a suit can be filed through a next friend without any formal appointment by the Court, but a guardian ad litem of a minor defendant has to be appointed by the Court itself, and such guardian once appointed cannot be removed unless he desires to retire, or does not do his duty, or there is other sufficient ground for permitting him to retire (O. 32, Rule 11(1). It has, however, been held in a series of cases of this Court that the guardian ad litem appointed for a minor defendant continues to represent him until he baa been removed by an order of the Court. In the words of Straight, J., in Jwala Dei v. Pirbhu [1891] 14 A11. 35, ' where a person is appointed as the guardian of a minor for the purposes of a lis, that means of such lis is all its remifications and so long as it subsists, whether in the Court of first instance or in the Court of appeal, unless he takes the necessary steps to have himself discharged from that position which his been put upon him by the Court.
5. This view has been accepted in subsequent cases:
6. Bawan Das v. Bishnath [1899] A.W.N. 203, In the matter of the application of Sukhdeo Rai [1905] 2 A.L.J. 489, Shambhu v. Kanhaiya A.I.R. 1922 All. 382, Bhagelu v. Dharma A.I.R. 1924 All. 79.
7. It must therefore now be taken as settled law that even for purposes of appeal it is only the guardian ad litem appointed by the trial Court who can represent the minor, and that so long as he has not died, retired or been removed, no one else can be allowed to represent the minors in appeal. A suggestion was thrown out in the case of Bawan Das v. Bishnath [1899] A.W.N. 203, that the proper remedy would be to apply to the lower appellate Court for an order removing the guardian ad litem from his office and, if such an order were obtained, to present a fresh appeal together with an application under Section 5, Lina. Act. That of course was an observation not necessary for the purposes of that case.
8. After the passing of a decree the lis in at least the trial Court comes to an end for the time being, and as the rules under Order 32 do not expressly apply to execution proceedings, it would seem that the Court becomes functus officio for the purpose of removing the guardian and appointing a fresh guardian in his place: Fani Bhusan v. Surendra Nath Das A.I.R. 1921 Cal. 476. It would therefore be both inappropriate and inconvenient to apply to the trial Court to appoint a fresh guardian in order that an appeal may be preferred by him. In cases where the guardian ad litem dies after the decree, the practice of this Court is to permit an appeal to be preferred by another next friend or guardian along with an application praying for his formal appointment. It seems to us that if the allegation is that the guardian is either not doing his duty or is negligent or has colluded, or if there is other sufficient ground for his removal, any other person interested in the welfare of the minor may prefer an appeal accompanied by an application for the removal of the guardian and the appointment of himself in his place. It is very doubtful if without any such appeal pending before the appellate Court it would be seized of the case and would have jurisdiction to order the removal of the previously appointed guardian ad litem. A mere application for such a purpose without an appeal may therefore be defective. On the other hand, even if there is some defect in the presentation of the appeal by a person who has not yet been formally appointed as guardian, that defect can be easily cured under the provisions of Section 153, Civil P. C, to which there was no corresponding section in the old Code which was in force at the time when Bawan Das's case was decided. We think it would be simplifying procedure if an appeal were allowed to be preferred within the time allowed by law by another next friend, coupled with an application for the removal of the guardian ad litem on any of the grounds mentioned in Order 32, Rule 1; and if such an application is ultimately granted, the appeal may be treated as having been properly filed.
9. In the present case, however, there is this difficulty in the way of the appellant, that no formal application for the removal of the guardian ad litem was preferred, and there was no suggestion that there was any ground for his removal as contemplated by Order 32, Rule 11. Nor does it appear that the guardian ad litem had any notice to oppose an application for his removal. At best it can be suggested that the guardian ad litem was not ready to prefer an appeal, possibly because he thought that the appeal would have no force. The learned District Judge could not have entertained such an oral application at the late stage at which the suggestion came without an opportunity having been given to the guardian ad litem to meet it. We therefore think that, although it would not be correct to say that he had no jurisdiction to entertain any such application, he was perfectly justified in refusing to entertain it as it was made at a very late stage in the case and gave no grounds which would justify the removal of the guardian.
10. In this view of the matter it is not necessary to go into the other questions which have been raised in this appeal. We accordingly dismiss this appeal with costs.
11. We have taken into consideration the circumstances under which the appeal was preferred in the lower appellate Court and in this Court, as well as the grounds of decision, and we think that on the whole it would be just and proper to direct that the parties should bear their own costs in both these Courts.
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