Nov - High Court of Judicature at Allahabad

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974 INDIAN LAW REPORTS ALLAHABAD SERIES [2009 for substitution of grand-son of Ramshree namely, Shanker, who was minor at the relevant time, and was orphan, as his mother and father pre-deceased the grand mother, was filed through his sister, namely, Babali. On the substitution application, notices were issued. It appears that natural guardian, Babali did not respond to the notice and therefore, an application was made by the plaintiff for appointment of an advocate as Guardian to Shanker under order of the Court with reference to the provisions of Order XXXII Rule 3 of the Code of Civil Procedure. Before formal orders could be passed on the application, Babali responded and appeared to protect the interest of her minor brother. She appeared before the trial court and filed her written submissions. She also contested the proceedings in the suit filed by Navab Singh. The suit was ultimately decreed under judgment and decree dated 31st January, 2007. Not being satisfied, Shankar through his sister Babali as well as subsequent purchasers, namely, Katori Devi and Sushila Devi filed Civil Appeal No. 13 of 2007. The appeal filed has also been dismissed by the first appellate court vide judgement and order dated 31st May, 2008. Hence the present second appeal. 4. This present second appeal has been filed by subsequent purchaser of the property in question, namely, Katori Devi only. Shanker through his guardian, Babali has been impleaded as proforma respondent no.2. 5. On behalf of the appellant, judgment and orders of the courts below are being challenged on the ground that despite application having been made under Order XXXII Rule 4 (4) of the Code of Civil Procedure, no orders on the applications were passed by the court concerned appointing a guardian for the minor defendant, Shanker and Smt. Babali therefore, had no right to represent the interest of Shanker. The decree was passed against the minor in absence of any guardian having been appointed under Order XXXII Rule 3 of the Code of Civil Procedure and therefore be declared as null and void. 6. I have considered the submissions made by the learned counsel for the appellant and have examined the records of the present second appeal. 7. The trial court framed issue no.9 for deciding as to whether the suit as filed by the plaintiff is hit by Order XXXII Rule 3 of the Code of Civil Procedure or not. 8. This Court finds that suit was instituted against Smt. Ramshree. After her death, Shanker, who was minor was substituted through her real sister. Notices were issued to the substituted legal heir through Babali. However, Smt. Babali did not respondent. Plaintiff therefore, made an application under Order XXXII Rule 4 (4) read with Section 151 of the Code of Civil Procedure for a guardian being appointed for Shanker. Before orders could be passed on the said application, Smt. Babali appeared as the Guardian of Shanker and filed her written statement, she also contested the proceedings. At no point of time, any objection was raised by the appellant qua substitution of Shanker, who was minor through her real sister in whose custody, he was residing. The suit was decreed by the trial court vide judgment and decree dated 31st January, 2007. Against the said decree, civil appeal no. 13 of 2007 was filed by Shanker
3 All] Smt. Katori Devi V. Nawab Singh and others 975 through her sister along with Smt. Katori Devi and Smt. Sushila Devi and the plaintiff was impleaded as respondent in the appeal. The first appellate court considered the objection with regard to the orders under Order XXXII Rule 4 (4) having not been passed on the application made by the plaintiff being paper no. 98- A and held that present appeal itself has been filed by Shanker through her natural guardian as the sister and at no point of time, any objection was raised, even when substitution was directed and amendments were made in the plaint itself before the trial court. The Court, therefore, held that in these circumstances, it cannot be said that sister was not looking after the interest of her minor brother or that she had any adverse interest in the property vis-a-vis minor brother Shanker. The first appellate court therefore, held that objection in that regard by the appellant was too technical in nature and cannot be used as a tool to defeat the lawful decree of the court below. 9. Before this Court the same plea has been raised qua orders being not passed on application being paper no. 98- A made under Order XXXII Rule 3 & 4 of the Code of Civil Procedure and therefore, the judgement and decree of the courts below be declared null and void. 10. This Court may record that Shanker has not chosen to file any appeal against the judgement and decree of the first appellate court and he has permitted the order become final. 11. For appreciating the controversy, it would be worthwhile to reproduce Order XXXII Rule 3, 4 and 4A as substituted in the State of Uttar Pradesh, which reads as follows: "ORDER XXXII SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND 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 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. [(4A) 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
Page 1: 3 All] Smt. Katori Devi V. Nawab Si
Page 5 and 6: 3 All] Smt. Katori Devi V. Nawab Si
Page 7 and 8: 3 All] Kailash Babu Gupta V. State
Page 9 and 10: 3 All] Anil Kumar Vashisth V. State
Page 11 and 12: 3 All] Anil Kumar Vashisth V. State
Page 13 and 14: 3 All] Smt. Sadhana Singh V. State
Page 21 and 22: 3 All] C/M, Lok Bharti Inter Colleg
Page 23 and 24: 3 All] Krishan Kumar V. State of U.
Page 25 and 26: 3 All] Smt. Raman Pandey and others
Page 27 and 28: 3 All] Smt. Shailendra Rai V. State
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3 All] Jafar Khan V. State of U.P.
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3 All] New India Assurance Co. Ltd.
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3 All] National Insurance Co.Ltd. V
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3 All] Vinay Kumar Upadhyay V.State
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3 All] Vinay Kumar Upadhyay V.State
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3 All] Matloob Gaur V.State of U.P.
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3 All] Ashutosh Kumar Tripathi V.St
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3 All] Superintending Engineer and
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3 All] Dr. R.C. Agrawal and another
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Nov - High Court of Judicature at Allahabad

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