Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 188 (JK)

Ab. Ahad Bhat v. Tabasum Manzoor

2010-04-08

GH.HASNAIN MASSODI

body2010
1. Short controversy involved in this Revision Petition relates to maintainability of the application for amendment of a petition under Section 25 of Guardian & Wards Act 1977 (1920 AD). The controversy arises in the following circumstances:- 2. The petitioners herein are Paternal Grand Parents of Master Noman Manzoor and respondent is mother of the minor. The petitioners, after sad demise of Shri Manzoor Ahmad Bhat - father of Master Noman Manzoor on 08.01.2008, filed a petition under Section 25 of Guardian and Wards Act for custody of Shri Noman Manzoor. The parties settled the matter amicably and in terms of compromise the petitioners, were appointed as Guardians of person and property of the minor. The compromise was recorded by Learned 1st Additional District Judge Srinagar and in terms of compromise on 25.3.2008, the Guardianship Certificate for person and property of Shri Noman Manzoor son of Late Manzoor Ahmad Bhat resident of Solina Payeen, Srinagar, aged 15 months was granted in favour of the petitioners. The respondents herein aggrieved of the order filed a Civil First Miscellaneous Appeal before this Court. The Appeal was allowed on 28.7.2009 and the order dated 25.3.2008, appointing the petitioners as Guardian of person and property of the minor was set aside and the matter remanded to the court of 1st Additional District Judge Srinagar for its disposal in accordance with provisions of Guardian and Wards Act 1977 (1920 AD), This Court held that appointment of Guardian fell beyond scope of petition under Section 25 of the Guardian and Wards Act and the court below had no jurisdiction to appoint the Guardian of person and property of the minor, even on compromise entered into by the parties and with the consent of the parties. It was observed; ".........no amount of consent of the parties can vest jurisdiction in a court to award the relief which a suitor had not sought for. Jurisdiction of a court to grant relief to a suitor depends on the pleadings, made by him in this behalf, and in view of the respondents limited pleadings in the present case, seeking only custody of the minor and nothing beyond that, the learned 1st Additional District Judge, had thus no jurisdictional competence to direct appointment of the respondents as minors guardian." 3. The petitioners, after the case was received by the court of 1st Additional District Judge, Srinagar, filed an application for amendment of the petition under section 25 of the Act. The petitioners proposed to amend the petition under Section 25 of the Act arid through amendment incorporate prayer for their appointment as Guardian of the person and property of the minor. The petitioners in effect intended to convert the petition under section 25 of the Act into one under section 7 of the Act. The Trial Court vide order dated 11.11.2009 rejected the prayer for amendment of the petition. The order dated 11.11.2009 is impugned in the present Revision Petition. Heard and Considered. 4. The Trial Court, while declining the prayer for amendment of the petition under Section 25 of the Act, appears to have been influenced by the following considerations;- 1. That the proposed amendment was likely to change the nature of the case and help the petitioners to setup a new case. 2. That there was no provision under the Guardian arid Wards Act for amendment of the pleadings as the Guardian and Wards Act was a self contained Code, application for amendment of the petition under section 25 of the Guardian & Wards Act laid by the petitioners was not maintainable. 5. There can be no disagreement with the view taken by the Learned Trial Court that the amendment cannot be made as a camouflage to introduce and set up a new case as against one already put forth before the Court, The expression "amendment" itself implies that what is sought to be amended, is to remain in its essential features intact and the amendment is only proposed to elaborate, explain or modify the pleadings before the Court without violating the fundamental features of the pleading, sought to be amended. It is well settled law that the amendment cannot be used as a tool to introduce a new cause of action, set up a new case or withdraw an admission unless of course the effort is only to explain an admission made, again the amendment must not appear to have been based on malafide considerations, to prolong agony of the opposite party or adversary in the proceedings. Having said so, let us have a look at Section 25 and 7 of Guardian and Wards Act. Having said so, let us have a look at Section 25 and 7 of Guardian and Wards Act. Section 25 of the Guardian & Wards Act deals with the situation where the ward leaves or is removed from the custody of the guardian of his person and the Court is of the opinion that it will be for the welfare of the ward to return to the Guardian, custody of the ward. In such a case the Court is empowered to make an order for his return and the Court is even clothed with the power to cause the ward to be arrested and to be delivered into custody of the Guardian. It is important to note that the expression "Guardian" under section 25, having regard to definition of the guardian in Section 4(2), does not necessarily mean natural guardian or the guardian appointed by the Court. It includes a person, who is having care of a person of minor or of his property, or both of his person and property. Section 7 visualizes completely different situation. It empowers the Court to make an order regarding guardianship of person and/or property of a minor. In terms of Section 7 of the Act, where the Court is satisfied, it is for the welfare of a minor that an order should be made, appointing guardian of his person and property or both or declaring a person to be such guardian. The court may make an order accordingly. The case set up by a person under section 25 of the Act, to seek return of a minor, who is left or removed from his custody, is to be significantly and markedly different from the case to be set up by a person, invoking jurisdiction of court under section 7 of the Act and praying for his appointment as guardian of a person or property of a minor and so is the cause of action for petitioners under said provisions. The consequence that flow out of an order passed under Section 25 of the Act and order passed under Section 7 likewise fall under two different realms. The consequence that flow out of an order passed under Section 25 of the Act and order passed under Section 7 likewise fall under two different realms. What is required to be proved by a person, asking for return of custody of a minor, is different from the standard of proof the Court must look for while making an order under Section 7 of the Act for appointment of a guardian of person and property of a minor. What is sought to be emphasized, the proceedings under section 25 and under section 7 are falling within the two separate areas and amendment cannot be used as a tool to convert a petition under section 25 into one under section 7 of the Act. Such an effort would be against the basic cannons of law governing amendment of the pleadings. Learned Trial Judge was right in holding that the proposed amendment would enable the petitioners to set up a wholly new case different from one previously set up. 6. However the view taken by the Learned Trial Judge that as there was no provision for amendment, the pleadings under Guardian & Wards Act, there was no scope for amendment of a petition under section 25 or for that matter any provision of the Act, is erroneous and not tenable. There is no scope for any doubt that procedure laid down in Code of Civil Procedure is to be followed in proceedings under Guardian and Wards Act. The proceedings under Guardian and Wards Act are civil proceedings before the Court of Civil jurisdiction. Section 141 of Code lays down that the procedure provided in the Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Section 4~A of the Act provides that the High Court may empower any officer to exercise original civil jurisdiction subordinate to District Judge or authorize any District Court to empower any such officer subordinate to him, to dispose of any proceedings under the Act. Section 10 lays down that the application under section 7 shall be signed and verified in a manner as prescribed in Code of Civil Procedure for signing and verifying a plaint. Section 10 lays down that the application under section 7 shall be signed and verified in a manner as prescribed in Code of Civil Procedure for signing and verifying a plaint. Again Section 11 makes it obligatory for the Court, on receipt of the application for appointment of guardian, to serve the parents and other person(s), mentioned therein, in a manner directed in Code of Civil Procedure. Section 43(4) of the Act lays down that in case of disobedience to an order made under sub-section (1) or sub-section (2), the order may be enforced in the same manner as an injunction granted under Order XXXIX rules 1 & 2 of Code of Civil Procedure, Section 46 empowers the Court to exercise powers available under Code of Civil Procedure to compel the attendance of witness, to give evidence or produce documents. Section 48 of the Act makes room for a Civil Revision under Section 115 of Code of Civil Procedure against an order made under the Act. All these provisions make it sufficiently clear that the Code of Civil Procedure is to be followed in proceedings under the Act. So viewed, either of the parties to the proceedings under the Act can press into service Order 6 Rule 17 of Code of Civil Procedure to amend their respective pleadings. I am fortified of the view by the law laid down in "Shiv Saran v. Smt. Satbhirawan Trust Delhi and others, AIR 1961 Punjab 17," wherein the Court has observed that "there can be no manner of doubt that the procedure of Code of Civil Procedure is to be followed in proceedings under Guardian and Wards Act". For the reasons discussed above, the Civil Revision is dismissed. Copy of order along with record be send down. The parties to appear before the court below on 20th April 2010.