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2020 DIGILAW 408 (UTT)

Khasti Devi v. Gita

2020-10-14

SHARAD KUMAR SHARMA

body2020
JUDGMENT Sharad Kumar Sharma, J. - The petitioner has preferred the present writ petition, challenging the impugned order dated 18.05.2018, as passed by the Court of Additional District Judge, Ramnagar, in Civil Revision No. 27 of 2018, Smt. Khasti Devi and another Vs. Smt. Gita, by virtue of which, the revision, preferred by the petitioner, was dismissed, and as a consequence thereto it was resulted into an affirmation of an order dated 12.03.2018, which was passed by the Civil Judge (Senior Division), Ramnagar, in Civil Suit No. 25 of 2016, Smt. Khasti Devi and another Vs. Smt. Gita. 2. During the pendency of the Suit in question, an Application was preferred by the plaintiff No. 1, by invoking the provisions contained under Order 32 Rule 7(1A) of CPC. In the said application, thus preferred, the petitioner had sought the following prayer:- 3. In fact, the appointment of guardian, which was intended to be sought for, by virtue of the said application, it was intended to be for the purposes of pressing the compromise, in the suit in question. However, the said application was rejected on the ground that there was no valid prior permission was taken under Section 8 of the Hindu Minority and Guardianship and Wards Act, 1890, the said judgement on a challenge before the Revisional Court was affirmed by the Revisional Court on 18.05.2018. 4. The learned counsel for the respondent Mr. J.C. Belwal submits that though the application under Order 32 Rule 7(1A) of CPC, could be legally allowed, but for the reason being that the reasons which had been assigned by both the Courts below that the application would not lie in view of the bar created under Section 8 (2) of Hindu Minority and Guardianship and Wards Act, 1890. His argument is that because the provisions of the said Act of 1890, would not apply to the agricultural lands. 5. Be that as it may. If that is the proposition and the implications flowing from Section 8 of the said Act, the application under Order 32 Rule 7(1A) of CPC, has been wrongly rejected under the premise of there being no prior permission taken under Section 8(2) of the Act of 1890. Hence, the orders of both the Courts below are quashed. If that is the proposition and the implications flowing from Section 8 of the said Act, the application under Order 32 Rule 7(1A) of CPC, has been wrongly rejected under the premise of there being no prior permission taken under Section 8(2) of the Act of 1890. Hence, the orders of both the Courts below are quashed. The Application under Order 32 Rule 7(1A) of CPC, as preferred by the petitioner No. 1, to be appointed as guardian of petitioner No. 2, would stand allowed. However, the prayer as sought for in the said application, that the appointment as guardian is being sought for exclusively for the purpose of being appointed as guardian, to entered into a compromise is an aspect, which is to be independently dealt with by the learned trial Court, with regards to the propriety of the compromise and proceed accordingly in accordance with law. 6. Subject to above observation, the writ petition is allowed. The impugned orders are quashed. The petitioner No. 1, is appointed as to be the guardian of petitioner No. 2 under Order 32 Rule 7(1A) of CPC, but, however, all contentions pertaining to the enforcement of the compromise, is left open to be argued by the parties to the writ petition and to be decided independently on merits. 7. Pending application stands disposed of accordingly.