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2013 DIGILAW 1902 (RAJ)

Kalu v. Prakash

2013-10-30

ARUN BHANSALI

body2013
JUDGMENT : Arun Bhansali, J. This revision petition is directed against the order dated 31.5.2013 passed by Additional District Judge No.2, Udaipur, whereby the application filed by the petitioners under Order 7, Rule 11 CPC has been rejected. 2. Brief facts of the case may be noticed thus : one Prakash and Miss Pushpa, minor children of late Paratiya filed a suit for cancellation of sale deed dated 26.6.2012 and permanent injunction, inter-alia against the petitioners through their uncle Amba Lal. 3. An application was filed by the petitioners under Order 7, Rule 11 CPC, inter-alia with the allegations that Amba Lal has wrongly filed the suit as guardian of Prakash and Miss Pushpa and such suit was not maintainable as per provisions of Order 32 CPC as under the said provisions it is only the natural guardian, who can file the suit as next friend and plaintiffs' grand mother Gaindi Bai was still alive. Further averments were made that the suit could only be filed by the natural guardian or guardian appointed by the Court and third person cannot file a suit. It was also claimed that the plaintiffs have no cause of action and Amba Lal cannot question the sale and as such the suit was not maintainable. 4. The trial court after hearing the parties by the impugned order dated 31.5.2013 came to the conclusion that provision of Order 32, Rule 4 CPC does not require that the suit has to be filed by a natural guardian only and consequently, dismissed the application under Order 7, Rule 11 CPC filed by the petitioners. 5. It is submitted by learned counsel for the petitioners that the over all scheme of Order 32 provides that a suit by or against minor can only be filed by the natural guardian and/or person entitled under the provisions of the Hindu Minority & Guardianship Act, 1956 ('the Act') and no one else can file a suit as next friend. It was submitted that if the intention of legislature is gathered then provisions of Order 32, Rule 3 CPC would also apply to a suit by the minor and as admittedly Amba Lal is neither a natural guardian nor guardian appointed by the Court he is not entitled to maintain the suit. 6. It was submitted that if the intention of legislature is gathered then provisions of Order 32, Rule 3 CPC would also apply to a suit by the minor and as admittedly Amba Lal is neither a natural guardian nor guardian appointed by the Court he is not entitled to maintain the suit. 6. Reference was made to provisions of Section 11 of the Act to contend that de facto guardian is not entitled to deal with minor's property. 7. Reliance was also placed on judgment of Allahabad High Court in Surendra Kumar & Anr. v. Rajendra Kumar Agarwal, AIR 1990 Allahabad 49 and that of Madras High Court in Balasubramanian v. Tinnevally District Permanent Fund Ltd., AIR 1959 Mad. 429 8. I have considered the submissions made by learned counsel for the petitioners. The relevant provisions of Order 32 CPC reads thus: "ORDER XXXII SUIT BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND 1. Minor to sue by next friend.- Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. Explanation.- In this Order, "minor" means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act. 1875 (9 of 1875) where the suit relates to any of the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter. 2. Where suit is instituted without next friend, plaint to be taken off the file.- (1) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. (2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit. (2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit. 2-A. Security to be furnished by next friend when so ordered.- (1) Where a suit has been instituted on behalf of the minor by his next friend, the Court may, at any stage of the suit, either of its own motion or on the application of any defendant, and for reasons to be recorded, order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant. (2) Where such a suit is instituted by an indigent person, the security shall include the court-fees payable to the Government. (3) The provisions of Rule 2 Order 25 shall, so far as may be, apply to a suit where the Court makes an order under this rule directing security to be furnished. 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 a 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. (4-A) 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. 3-A. Decree against minor not to be set aside unless prejudice has been caused to his interest.-(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree. (2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor. 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: Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff. (2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or 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 permitted to act or be appointed, as the case may be. (3) No person shall without his consent in writing be appointed guardian for the suit. (3) No person shall without his consent in writing be appointed guardian for the suit. (4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested or out of the property of the minor, and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require." 9. Rule 1 deals with institution of a suit by a minor, which is required to be instituted in his name by a person who in such suit is call the 'next friend' of the minor, Rule 2 provides that where the suit is instituted without next friend, the plaint is liable to be taken off the file, Rule 2A thereafter provides for security to be furnished by next friend, in case the Court feels such requirement either on its own motion or on an application filed by the defendant. 10. Rule 3 deals with case of a minor defendant, wherein a duty has been cast upon the Court to appoint proper person to be guardian for the suit for such minor and the appointment can be made by the Court on application made on behalf of the minor or by the plaintiffs and sub-rule (4) of Rule 3 thereafter provides for circumstance, in which a guardian can be appointed and provides for conditions and restrictions relating to such appointment. 11. Rule 3A provides the decree against minor cannot be set aside unless prejudice has been caused to his interest. 12. Rule 4 deals with 'who may act as next friend' or be appointed guardian for the suit and the requirement is that 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. The proviso therein provides that the person so acting should have no adverse interest to that of minor and in case of a next friend, he is not a defendant. The proviso therein provides that the person so acting should have no adverse interest to that of minor and in case of a next friend, he is not a defendant. Sub-Rule (2) of Rule 4 is significant as it puts a restriction that where a minor has guardian appointed or declared by the competent authority, no person other than such guardian shall act as a next friend. 13. A review of the above provisions reveals that the provisions of Order 32 provides for two distinct situations i.e. a suit on behalf of a minor and a suit in which the minor is a defendant. While the suit on behalf of a minor is to be instituted through a 'next friend', a minor as a defendant is require to defend the suit through a 'guardian'. The eligibility of a next friend and guardian are governed by the provisions of Order 32, Rule 4 CPC which in case of a next friend provides that the person should be of sound mind and has attained the majority. However, the person should not have a interest adverse to that of a minor and he should not be a defendant in the suit. 14. As noticed here-in-before, it is significant that sub-rule (2) of Rule 4 provides that it is only in a case where a guardian is appointed or declared by the competent authority than the said person only can act as a next friend and otherwise there is apparently no restriction under the said provision for any other person acting as a next friend. 15. The provisions of Order 32, Rule 1 & 3 CPC functions in totally different spheres, inasmuch as, while Rule 1 deals with a case of minor plaintiff, Rule 3 deals with a case of minor defendant. The restrictions and safeguards as contained in Rule 3 CPC are not available under Rule 1 and the requirements of Rule 3 cannot be imported for judging the maintainability of a suit under Rule 1. Order 32 envisaged two distinct positions as next friend and guardian and only eligibility provided for a next friend is contained in Rule 4. 16. The restrictions and safeguards as contained in Rule 3 CPC are not available under Rule 1 and the requirements of Rule 3 cannot be imported for judging the maintainability of a suit under Rule 1. Order 32 envisaged two distinct positions as next friend and guardian and only eligibility provided for a next friend is contained in Rule 4. 16. From the above analysis, the following position emerge: (a) Any person can act as the next friend of a minor, provided (i) he is of sound mind, (ii) has attained majority, (iii) interest of such person is not adverse to that of the minor. (iv) he is not a defendant. (b) In a case where a minor has a guardian appointed or declared by competent authority than such guardian shall act as next friend. (c) for welfare of the minor, for reasons to be recorded, person other than the guardian appointed or declared by competent authority can be permitted to act as next friend. 17. In the present case, the petitioners cannot be heard/choose as to who should be the next friend of the minors and there is no basis to question the eligibility of the next friend, who has filed the suit as there are no allegations in the application regarding the next friend having any interest adverse to the minors or any other ineligibility as envisaged by Order 32 and noticed above. 18. So far as the provisions of Section 11 of the Act are concerned, the same deals with restriction on a de facto guardian, who is not entitled to dispose of or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor. 19. As noticed here-in-above, the provisions of Order 32 does not require a guardian to file the suit on behalf of the minors-plaintiffs and provisions of 'next friend' does not require that it is only the guardian who could be next friend and therefore, the provisions of Section 11 have no application. 20. So far as the judgment of Allahabad High Court of Surendra Kumar (supra) is concerned, the observations made in para 12 of the said judgment are merely obiter and are not supported by any provision of law. 20. So far as the judgment of Allahabad High Court of Surendra Kumar (supra) is concerned, the observations made in para 12 of the said judgment are merely obiter and are not supported by any provision of law. The judgment in the case of Balasubramanian (supra) of Madras High Court has apparently no application to the facts of the present case as the said case does not even refer to the provisions of Order 32 CPC. 21. In view of the above discussion, the order impugned passed by the trial court rejecting the application filed by the petitioners does not call for any interference. 22. Accordingly, there is no substance in the revision petition and the same is, therefore, dismissed. The stay application is also dismissed. Revision Dismissed.