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2006 DIGILAW 1461 (ALL)

RAJENDRA PRASAD GUPTA v. Km. PURNIMA SHARMA

2006-05-23

PRAKASH KRISHNA

body2006
JUDGMENT Hon’ble Prakash Krishna, J.—The present revision is directed against the order dated February 19, 2001 passed by the Second Additional District Judge (Senior Division), Muzaffarnagar in Misc. Case No. 21 of 1999 (O.S. No. 337 of 1994, Smt. Sarla Sharma v. Ganga Prasad) whereby the Court below has allowed the application 3 Ka and restored the suit to its original number after recalling the order dated 25th of August, 1994. The original suit No. 337 of 1994 was instituted for permanent injunction and cancellation of sale deed dated 24th of August, 1994 on behalf of two minors and their mother through Smt. Sarla Sharma (mother) who died during the pendency of the suit and in her place Om Prakash Sharma was allowed to act as next friend of the minors. The said suit was decreed ex-parte on March 21, 1998. This ex-parte decree was set aside. Subsequently, an application was filed by Shri Ashok Kumar, Advocate, on behalf of the plaintiff minors that he does not want to continue with the suit and the suit may be dismissed accordingly. On the application of Shri Ashok Kumar, Advocate, filed on 20th of August, 1998, the suit was dismissed accordingly. Thereafter, an application purporting to be under Section 151, C.P.C. was filed through one Janeshwar Prasad Gautam as next friend of minors for the recall of the order dated 25th of August, 1998 passed in the O.S. No. 337 of 1995 and to restore the suit to its original number on number of grounds including that while passing the order dated 25th of August, 1998 the Court overlooked the provisions of Order XXIII, Rule 1, C.P.C. which has vitiated the order dated 25th of August, 1998. It was also stated therein that the provisions of Order XXXII, Rules 1 to 14 are applicable and if there was any compromise on behalf of the minor, the compromise application should have been filed with the leave of the Court and in absence of terms of compromise before the Court, the order dated 25th of August, 1998 is illegal and contrary to law. In para 15 of the said application it was stated that Dr. In para 15 of the said application it was stated that Dr. Janeshwar Prasad Gautam is taking care of minors and has no interest adverse to the interest of minors and he is looking after them and is entitled to act as their next friend as he is maternal uncle of the father of the minors. 2. The aforesaid application was opposed by filing objections by the present applicant on the allegation that one of the minors namely Ravi Kant Sharma has become major and he has not come forward for recalling the order dated 25th of August, 1998, dismissing the suit. The statement of Sri Ashok Kumar, Advocate, was recorded while passing the order dated 25th of August, 1998 and the Court rightly dismissed the suit for want of prosecution by the order dated 25th of August, 1998. 3. The trial Court by the order under revision recalled the order dated 25th of August, 1998 and restored the suit to its original number on the findings that Shri Ashok Kumar, Advocate, failed to watch the interest of the minors and the mandatory provisions of Order XXIII and Order XXXIX, C.P.C. were not followed by the Court while passing the order dated 25th of August, 1998 and that the order dated 25th of August, 1998 being in the teeth of the mandatory provisions of Order XXIII and Order XXXII, the order dated 25th of August, 1998 being contrary to law, cannot be allowed to stand. It also rejected the objection by the present applicant that the application is barred by time on the ground that no period of limitation for filing an application under Section 151, C.P.C. is prescribed and the order should be passed after affording opportunity of hearing to both the parties of a matter. Feeling aggrieved with the aforesaid order, the present revision has been filed by the defendant of the aforesaid suit. 4. Sri Pramod Kumar Jain, the learned Counsel for the applicant, submitted that Ravi Kant Sharma, who has become major is not coming forward to recall the order dated 25th of August, 1998 and that Km. Purnima Sharma has also become major during the pendency of the present revision, has also not come forward to join the application filed by Dr. Janeshwar Prasad Gautam claiming himself as guardian and next friend of Km. Purnima Sharma, in the revision. Purnima Sharma has also become major during the pendency of the present revision, has also not come forward to join the application filed by Dr. Janeshwar Prasad Gautam claiming himself as guardian and next friend of Km. Purnima Sharma, in the revision. The finding of the Court below that the application is not barred by time was also raised during the course of argument. 5. In contra, Sri Siddharth, the learned Counsel for the contesting opp. party, submitted that since the order dated 25th of August, 1998 was passed without following the mandatory provisions of Order XXIII and Order XXXII, C.P.C. no interference with the impugned order by this Court is called for specially in exercise of discretionary jurisdiction conferred on it under Section 115 of Code of Civil Procedure. 6. I have given careful consideration to the respective submissions of the Counsel for the parties. For the sake of convenience the Order XXIII, Rules 1 and 2 are reproduced below : "Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim : Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. Order XXXII, Rule 7 reads as follows : 7. Agreement or compromise by next friend or guardian for the suit : (1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian." 7. Agreement or compromise by next friend or guardian for the suit : (1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian." 7. The Supreme Court in the case of Dokhu Bhushayya v. Katra Gadda, AIR 1962 SC 1886 has held that it is duty of the Court, so far as practicable to safeguard the interest of minors. The aforesaid rule overrides any general or customary law and should be strictly construed. Rule forbids the next friend or the guardian to enter into an agreement or a compromise on behalf of minor without express leave of the Court and by implication it requires the Court to consider, in exercise of judicial discretion, propriety of the same in the interest of minor. In Sita Ram and another v. Director of Consolidation, Agra Division, Agra and others, 1967 ALJ 723, it has been held that minor can plead in defence that agreement arrived at in total disregard of Order XXXII, Rule 7 is not binding on him. 8. A conjoint reading of Order XXIII, Rule 1 and Order XXXII, Rule 7 clearly show that it envisages that there should be an affidavit of the next friend and also if the minor or such other person is represented by a pleader, a certificate of the pleader to the effect that the amendment proposed is, in his opinion for the benefit of the minor or such other person. Similarly, the legislatures have taken full precaution under Order XXXII, Rule 7 that there should be express leave by the Court, recorded in the proceedings permitting the next friend or guardian for the suit to enter into an agreement or compromise on behalf of a minor with reference to the suit property. In other words, Rule 7 of Order XXXII mandatorily requires that an application for leave under sub-rule (1) of Order XXXII, Rule 7, should be accompanied by an affidavit of the next friend to the effect that the agreement or compromise proposed is in his opinion for the benefit of the minor. [See Om Pal v. Kirat, 1984 AWC 166 ]. 9. [See Om Pal v. Kirat, 1984 AWC 166 ]. 9. It further provides that when an application for leave is made, the Court will, having regard to the interest of the minor pass a decree in terms thereof under Order XXIII, Rule 3, C.P.C. The idea behind the enactment of proviso to Order XXIII, Rule 1 (1) and Order XXXII, Rule 7, C.P.C. is to safeguard the interest of minor, as a minor is not in a position to safeguard his or her interest. The law provides special protection to protect the interest of minors and his property. These provisions are couched in mandatory form and should be interpreted in the like manner keeping in mind the object and purpose of the aforesaid provisions. 10. Coming to the facts of the present case, this Court finds that an application was filed by Shri Ashok Kumar, Advocate, stating that a compromise has taken place in between the plaintiffs and the defendant No. 8 and the plaintiffs do not want to press the suit further. Therefore, the suit be dismissed as such. This application is dated 20th of August, 1998. There is no supporting affidavit of the next friend/guardian of the minors as mandatorily required under Order XXXII, Rule 7, C.P.C. Therefore, the said application does not fulfil the requirements of Order XXXII, Rule 7, C.P.C. and should not have been entertained by the trial Judge. The trial Judge passed the order dated 25th of August, 1998 in a routine manner and its attention was not invited by the parties towards the requirement of the Order XXXII, Rule 7, C.P.C. The fact that the plaintiffs were minors escaped the notice and attention of the Court which resulted in infraction of Order XXXII, Rule 7, C.P.C. This mistake has occurred obviously as the express permission as required under Order XXXII, Rule 7, C.P.C. was not sought for by the next friend of the minors, for the obvious reason. 11. Apart from above, there is no material on record to show as to how the said withdrawal of the suit, abandonment of the claim was in the interest of the minors. The filing of the said application dated 20.8.1998 was rather against the interest of minors. 11. Apart from above, there is no material on record to show as to how the said withdrawal of the suit, abandonment of the claim was in the interest of the minors. The filing of the said application dated 20.8.1998 was rather against the interest of minors. The facts do disclose that the minors and their mother were one side and the father of minor who is defendant acted against the interest of minor which led to the filing of the present suit by the mother of the minors to safeguard the interest of minors. 12. The Broom’s Legal Maxims (page 73) Actus curiae Neminem gravabit—an act of Court shall prejudice no man, is attracted. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad imposbilia the law does not compel a man to do what he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities, and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by Apex Court in Raj Kumar Dey v. Tarapada Dey, JT 1987 (3) SC 555 : 1987 (4) SCC 398 ; Gursharan Singh v. New Delhi Municipal Committee, JT 1996 (1) SC 647 : 1996 (2) SCC 459 and Mohammad Gazi v. State of M.P. and others, JT 2000 (4) SC 55 : 2000(4) SCC 342 . 13. In Munna and others v. Champa Kali, 1979 U.P.R.C.C. 420 it has been held by this Court that where a case has been taken by a Court on a date not fixed by it and a decree is passed, an application for recall of the decree shall lie on behalf of the aggrieved person and in such circumstances there is no need to comply with the provisions of Section 17 of the Provincial Small Causes Courts Act which otherwise provides the deposit or furnishing of decretal amount as a condition precedent for the entertainment of an application for setting aside the ex-parte decree. 14. Obviously, it was a case of mistake or omission on the part of the trial Court also and the trial Court by recalling its earlier order dated 25.8.1994 has corrected the mistake. 14. Obviously, it was a case of mistake or omission on the part of the trial Court also and the trial Court by recalling its earlier order dated 25.8.1994 has corrected the mistake. No case for interference under Section 115, C.P.C has been made out. There is no merit in the revision. The revision is dismissed with costs. Revision Dismissed. ———