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2016 DIGILAW 2903 (PNJ)

Mahabir Parshad v. Mohit

2016-10-06

DARSHAN SINGH

body2016
JUDGMENT : DARSHAN SINGH, J. The present revision petition has been preferred against the order dated 01.08.2016 passed by the learned Civil Judge (Jr. Division), Narnaul, whereby the application moved by the respondent no. 7-Dinesh Kumar under Order 32 Rule 3 of the Code of Civil Procedure, 1908 (for short C.P.C.) for appointing him as next friend of minor plaintiff-Mohit and to pursue the suit has been allowed. 2. Learned counsel for the petitioner contended that respondent no. 7-Dinesh Kumar is the maternal uncle of minor plaintiff-Mohit. Whereas, petitioner Mahabir Parshad is the father of the minor plaintiff. He contended that the petitioner being the father of the minor plaintiff is his natural guardian. He further contended that in the presence of the natural guardian, respondent no. 7-Dinesh Kumar his maternal uncle cannot be appointed as the next friend of the minor. Thus, he contended that the application filed by respondent no. 7 has been wrongly allowed by the learned trial Court. 3. I have duly considered the aforesaid contentions. 4. The minor plaintiff has filed the suit for declaration that he is co-owner in possession to the extent of ½ share in the suit land on the basis of the gift deed No. 295 dated 21.05.2003. He has also challenged the alienations made by defendant no. 1/respondent no.2. The suit was originally filed by minor plaintiff through Surinder Singh, his maternal grandfather. Said Surinder Singh had expired during the pendency of the suit on 22.08.2013. Thereafter, respondent no. 7-Dinesh Kumar, the maternal uncle of the minor plaintiff has filed the application to represent the minor plaintiff as his next friend. The said application has been contested by the present petitioner. 5. Learned trial Court vide impugned order dated 01.08.2016 has allowed the application moved by the respondent no. 7-Dinesh Kumar and appoint him as next friend of the minor plaintiff to pursue the suit. 6. It is pertinent to mention that a criminal case was registered against petitioner-Mahabir Parshad, the father of the minor plaintiff for committing the murder of his wife i.e. the mother of the minor plaintiff. But, he was acquitted in the criminal case. In the application moved by respondent no. 7-Dinesh Kumar, it has been categorically mentioned that the said case was decided as a result of compromise and the present petitioner has even solemnized the second marriage. But, he was acquitted in the criminal case. In the application moved by respondent no. 7-Dinesh Kumar, it has been categorically mentioned that the said case was decided as a result of compromise and the present petitioner has even solemnized the second marriage. He has got executed the release deed of the residential house executed in favour of his second wife. 7. The suit has been filed by the minor plaintiff to challenge the alienations made by respondent no. 2-Smt. Mini Devi, his grandmother. The learned trial Court has categorically mentioned in the impugned order that the minor plaintiff-Mohit had appeared before the Court and had stated that he was residing with respondent-Dinesh Kumar, who is taking care of his daily needs and education. It shows that the minor plaintiff is residing in the care and custody of respondent no. 7, who is taking care of his daily needs and education. So, he cannot have any adverse interest against the minor plaintiff. 8. Order 32 Rule 1 of the Code of Civil Procedure 1908 (hereinafter called ‘CPC’) provides that the suit on behalf of the minor is to be filed through the next friend, whereas, as per the provisions of Order 32 Rule 3 CPC where the minor is defendant the Court shall appoint a proper person to be the guardian of the minor for the purpose of the suit. The distinction between the next friend and the guardian is broadly akin to the one between legal representatives on the one hand and the legal heir on the other hand. The role of the legal representative in a proceeding is limited to the one of enabling the Court to conclude the proceedings in the event of the death of the party to the said proceedings. The legal heir, on the other hand, would inherit and succeed to the estate of the predecessor, which cannot be limited to the dispute in proceedings. Similarly, the next friend can do nothing more than keep the grievance of the minor-plaintiff before the court and seek adjudication whereas the guardian can take certain decisions by himself in the interest of the minor before or after filing of the suit. Any person, who is of sound mind and has attained majority may act as next friend of minor, provided the interest of that person is not adverse to that of minor. Any person, who is of sound mind and has attained majority may act as next friend of minor, provided the interest of that person is not adverse to that of minor. In the case of Minor Mangalam @ Badrakali & others Versus Sudalaimuthu, 1991(1) HLR 17 the minor has challenged the alienation by their parents, the suit was filed by him through his maternal uncle as next friend by obtaining the leave of the Court to act as next friend the Division Bench of Hon’ble Madras High Court has held that the suit instituted by the next friend on behalf of minors is maintainable. 9. In the instant case, the minor plaintiff has filed the suit to claim the ownership to the extent of ½ share of the suit land on the basis of the gift deed executed by defendant no.1, who happens to be the mother of the petitioner. The minor plaintiff has also challenged the alienation’s made by defendant no.1, the mother of the petitioner. It is also an admitted fact that the minor plaintiff is residing with respondent no. 7, his maternal uncle. The present petitioner was prosecuted for the murder of the mother of the minor plaintiff. In these circumstances, the petitioner cannot be a proper person to watch the interest of the minor plaintiff in the suit. On the other hand respondent no. 7, the maternal uncle of the minor plaintiff who is looking after him, has no adverse inference against the minor plaintiff. 10. Thus, keeping in view my aforesaid discussion, I do not find any illegality in the impugned order passed by the learned trial Court and it does not call for any interference by this Court. 11. Thus, the present revision petition having no merits, is hereby dismissed.