JAIRAM GURNANI Vs. SHANTA GURNANI

JUDGEMENT

(1.) The parties have a son Babloo, who was born on April 26, 1974, and is in the custody of his mother, respondent Mrs. Shanta. The law is that the father is the natural guardian of his legitimate minor son and the mother ordinarily has the custody of a child who has not completed the age of five years. And yet the father Jairam Gurnani filed an application on June 7, 1975, for his appointment as a guardian of the child and for obtaining its custody from the mother. Respondent Mrs. Shanta moved an application under Order 32 Rules 3 read with Rule 15 and section 151 of the Code of Civil Procedure, 1908, that the petitioner was suffering from 'paranoia' and was of unsound mind and therefore could not institute the application without the appointment of a next friend. The application was in fact under Rule 2 and not under Rule 3 which provides for such an application by a plaintiff or a petitioner against a defendant or a respon- dent. The petitioner contested the application. The learned Guardian Judge, Delhi, considering the allegations made and the documents produced by them, found it necessary to hold an inquiry into the matter, and on October 10, 1975, framed a preliminary issue: Whether the petitioner Jairam Gurnani is of unsound mind and is suffering from mental infirmity and is incapable of protecting his interest ? Hence, this revision.

(2.) The learned counsel for the petitioner assailed the impugned order, firstly, on the ground that the Code of Civil Procedure docs not apply to the proceedings either under the Hindu Minority and Guardianship Act, 1956, or under the Guardians and Wards Act, 1890. She invited my attention to section 4 of the Code and contended that since the special law, namely, the Guardians and Wards Act provides its own procedure, the learned lower court committed an illegality in making Civil Procedure Code applicable to these proceedings. This contention has to be rejected because no such contention was made before the learned Guardian Judge and also because it has no merit. Section 141 of the Code clearly lays down that the procedure provided by it ahall be applied in all proceedings in a court of civil jurisdiction. The District Court while acting as a Guardian Judge is certainly a court of civil jurisdiction. It is true that the Guardians and Wards Act makes some provisions which arc procedural in character, but in all other matters on which it is silent, the procedure provided in the Code has to be followed. That clearly is the consequence of sections 4 and 141 of the Code. If any authority is required for this proposition, then one is available in Deokishan and others v. Asaram, AIR 1933 Nas. 62(1 ).

(3.) The second contention was that Order 32 of the Code applied when it is the next friend who brings an action on behalf of the minor or a person suffering from unsoundness of mind or mental infirmity who was not before the court and a binding result of the proceedings could not be obtained in his absence. In this case, since the petitioner himself was before the court, the respondent could not put him out of court by alleging that the petitioner was of unsound mind. To allow such a course would be to permit the respondent to make any sort of false allegations in order to deny to the petitioner his otherwise indefeasible right to bring an action. It is only when a person purporting to act as a next friend or a gardian institutes or defends proceedings that a question whether he can do so can be allowed to be raised. Such a question cannot be raised or inquired into when the person himself institutes or defends a proceeding. This argument if wholly devoid of substance. Construction of Order 32 such as is being sought, cannot be accepted. Rule 2 of Order 32 contemplates that the defendant is entitled to apply to have the plaint taken off the file where the plaintiff is either minor or of unsound mind and the pleader or any person presents it on his behalf. In a reverse case therefore, the defendant can. where the plaintiff suffers from the aforesaid disability, insist that in order that the proceedings terminate in a binding result, they must be instituted and prosecuted by a next friend. No doubt, everyone having a cause has a right to bring an action but no such right is indefeasible. If the law provides that a right to sue or institute any proceeding can be exercised only in a prescribed manner, then it done otherwise, the suit or the proceeding, though not the right on which it is founded, can be defeated.