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2004 DIGILAW 340 (HP)

SHIV DAYAL v. ATUL KUMAR

2004-12-17

K.C.SOOD

body2004
JUDGMENT (K.C. Sood, J.) - This petition arises out of the orders passed by the learned Sub Judge 1st Class, Nurpur dated 5.10.2004. The order reads:- "5.10.2004 Present: Sh. R.R. Sharma, Advocate for plaintiff. Sh. J.C. Chaudhary, Ad. For defendant No. 1. Defendant No. 2 in person. Court guardian of defendant No. 3 also present in person. The learned Counsel for plaintiff moved an application wherein it is stated that after the transfer of this case that court guardian of the plaintiff has not contacted him. Keeping in view of the minority of plaintiff a more chance very kindly be granted to plaintiff to adduce his evidence. Keeping in view the facts that the plaintiff is more prayer considered and allowed subject to cost of Rs. 250/-. The learned Counsel for the defendant No. 1 refused to accept the cost. Now to come up for plaintiffs evidence on 12.10.2004. Sd/- Civil Judge (Jr. Divn.) Indora, Indora, Distt. Kangra (H.P.)." 2. It appears that minor plaintiff, respondent therein filed a suit for declaration that the sale made by his father respondent No. 2 in favour of Shiv Dayal, petitioner, herein was bad being without legal necessity, unauthorized and without consideration. This suit was filed in January, 1999. The minor was represented by his uncle Vijay Singh. After the settlement of the issues, the case was listed for evidence of the plaintiff on 8.1.2003. The case was adjourned for the evidence of the plaintiff from time to time but the plaintiffs evidence was never present in spite of imposition of costs on 7th May, 2903 and 25th August, 2003. The case was transferred to the present court on 17th March, 2004 and was listed for the evidence of the plaintiff on 5.10.2004 when the impugned order was passed by the learned trial Judge. 3. Learned Counsel for the petitioner submits that under the provisions of Order 17 Rule 1, Code of Civil Procedure no adjournment can be granted more than three times to a party during the hearing -of the1 suit and in the present case several opportunities were granted to the plaintiff yet the evidence was not produced, and, therefore, granting further adjournment amounts to abuse of the process of the Court, more so, when the suit is collusive as the sale has been challenged by the vendor himself in the name of his minor son. 4. 4. In support of his arguments Mr. Rahul Mahajan, Advocate cites Chanraj Lilaram Motwani and another v. Rajendra Kumar Dayachand Jain and others, AIR 1996 Bombay 3, Kuri Lal Rungta v. Smt. Banarsi Devi and others, AIR 1986 Allahabad 94, Chander Singh v. Chottulal, AIR 1994 Rajasthan 186 and Chandra Prakash Ojha v. District Judge, Bareilly and others, 2004(3) Civil Court Cases 367. 5. In the present case when the impugned order was passed by the learned trial Judge the learned Counsel who was representing the plaintiff moved an application saying that after the transfer of the ease to the court, the court guardian of the plaintiff has not contacted by him and, therefore, he could not produce the evidence. He prayed for one more chance, in view of the minority of the plaintiff. It is true that normally more than three adjournments could not be granted for the production of the evidence of a party. However, in view of the fact the plaintiff is minor the court could not have ignored the provisions of Order 32 of the Civil Procedure Code. 6. Rule 10 of Order 32 of the Civil Procedure Code clearly provides that if a guardian retires or is removed or dies then further proceedings should stand stayed until appointment of next friend in place of such person. Sub-rule 2 stipulates that where the pleaders of such minor omits to take steps for the appointment of another guardian or next friend within reasonable time, any person interested in the minor or in the matter in issue may apply to the Court for the appointment of one and the court appoint such person, if the Court thinks it proper to do so. Rule 11 imposes obligation on the court that where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him and make such order as he thinks proper and appoint a new guardian for the minor. 7. In the present case, it is apparent that the guardian of the minor was not performing his duties satisfactorily. 7. In the present case, it is apparent that the guardian of the minor was not performing his duties satisfactorily. Therefore, the Court could not have closed the evidence of the plaintiff but at the same time ought to have proceeded under the provisions of Order 32 Rule 11 of the Code and appointed another guardian for the minor. Unfortunately unmindful of the provisions of Order 32 the Court granted one more opportunity to the learned Counsel to produce evidence subject to costs of Rs. 250/-. This action was contrary to law and not sustainable. 8. Mr. Ramakant Sharma, learned Counsel representing the minor on the instruction of Mr. Timer Raj, maternal uncle of the minor states that Mr. Timer Raj is willing and able to act as guardian of the minor as the minor is residing with him and has no adverse interest to the minor. Looking to the circumstances and facts of the case in its entirety Mr. Timer Raj maternal uncle of the minor plaintiff is appointed as guardian. He shall prosecute the case and produce necessary evidence on the date to be fixed by the trial Court within three months from today. Timer Raj shall file an undertaking in this Court, within two weeks from today, saying that he will faithfully discharge the duties of the guardian of the minor and prosecute the case to the best of his ability and shall not make any default. 9. The petition is accordingly disposed of. 10. No costs. 11. Parties are directed to appear before the learned trial Court on 14th January, 2005. 12. Order dated 12.10.2004 passed in CMP No. 546 of 2004 shall stand vacated and disposed of.