AJIT KUMAR Vs. DISTRICT JUDGE RAMPUR

JUDGEMENT

(1.) The present petition has been filed by the defendants in a suit. The averment of the defendants was that originally the suit was filed against Mool Chand. During the pendency of the suit he expired in the year 1968 and thereafter they were impleaded. However, they were not served with any notice and the decree was passed against them. The Courts below have observed that the applicant did not file any affidavit in support of the conten tion. In the circumstances of the present case no affidavit was required as no material fact was in controversy. The allegation made in paragraph 10 of the writ petition discloses the ages of the petitioners as alleged by the plaintiff in his substitution application and as claimed by the defendants. From the ages it appears that at least applicants Nos. 3 to 7 were minors and a proper guardian had to be appointed for them. It further discloses, that Krishna Kumar, Pramod Kumar, Smt. Nirmala Devi and Smt. Bimla Devi were over ten years of age and, therefore it was necessary to serve them as well and obtain their consent for appointment of their guardian under Order 32 Rule 3. In this case it appears from the judgment of the lower appellate Court that the mother was the proposed guardian. It is not clear whether any order was passed appointing her, formerly guardian ad-litem of the minors or not. What was done was that the notice was served on the mother for these minors and treating it to be sufficient service the suit was decreed ex parte. It is shocking that the Courts below are so much unconcerned with the case of minors when the suits are before them. Order 32 Rule 3 specifically provides that no person shall be appointed as a guardian without his consent. In the instant case the mother never consented or appeared before the Court. In absence of her appearance her consent could not be inferred. Under the circumstances she could not have been appointed as a guardian. The amendment made in Rule 2, sub-Rule 3 of Order 32 provides, that in the application for appointment of guardian the name and addresses of all the persons who could be probable guardian in case the proposed guardian does not come forward to defend the interest of the minors. Sub-rule 4 also requires that notice of the application shall be served on all the proposed guardians as well. It so seems that the Courts below proceeded to decide the suit in a haste, without caring whether the minors have been duly represented. The Court is the real custodian of the minors are not prejudiced in any manner. It is also the duty of the plaintiff to see that a guardian is properly appointed for the minor defendants. In view of these provisions the orders of the Court below cannot be sustained. They have to be quashed. In the result, the petition is allowed. The orders passed by the Courts below (Annexure 1 and 2) to the writ petition are quashed and the respondent No. 2 is directed to restore the suit to its original number and decide the case afresh in accordance with law. It has been argued that some of the applicants were major on the date of service of summonses. The question about the applicants who were major or who were actually served as such, can also be considered by the Courts below. In case the Court comes to a conclusion that they were major on relevant dates the decree may be maintained against them but so far the minors are concerned, for whom no legal and proper guardian was appointed, the decree cannot be sustained. With these remarks the writ petition is allowed. The parties are directed to bear their own costs. .