SHASHI KANT RAI Vs. SUBHASH CHANDRA

JUDGEMENT

(1.) S. U. Khan, J. Respondent No. 2 Deo Narain Rai filed a suit for permanent prohibitory injunction against petitioner and respondents No. 1, 3 and 4. In the plaint of the suit which was filed on 2-6-1976 petitioner was arrayed as minor aged 16 years. Petitioner's mother refused to act as his guardian hence Sri Chandra Bali Ram Advocate was appointed as guardian ad litem (GAL ). The suit was registered as OS No. 164 of 1976, Deo Narain v. Subhash and Ors. In the suit, advocate who was appointed as GAL of the petitioner applied for permission of the Court for entering into compromise in the suit on behalf of minors. It was stated that the compromise was for the benefit of minor. Application was filed on 29-11-1978 and was allowed on 30-11-1978. Thereafter suit was decreed on 30-11-1978 on the basis of compromise in which plaintiff's exclusive ownership of the house in suit was accepted. Thereafter application for recall of the order accepting the compromise was filed by the petitioner on 1-1-1979, which was registered as Misc. Case No. 1 of 1979. Munsif Ghazipur, allowed the said application on 11-3-1982, set aside the order dated 30- 11-1978 and restored the suit on its number. Against the said order appeal was filed by the plaintiff respondent No. 2 Deo Narain being Misc. Civil Appeal No. 19 of 1982. The appeal was allowed by the Additional District Judge/special Judge, Ghazipur on 1-5-1984. Order of Munsif dated 11-3-1982 was set- aside.

(2.) TRIAL Court in penultimate paragraph of its judgment held that provision of Order XXXII, Rule 3 C. P. C. was violated, interest of minor was not kept in mind and at the time of compromise and its acceptance, it was not seen that whether the compromise was in the interest of minor or not.

(3.) UNDER Order XXXII, Rule 3 (5) C. P. C GAL continues as such through out all proceedings arising out of the suit unless his appointment as GAL is terminated by retirement, removal or death. UNDER Order XXXII, Rule 7, it is provided that GAL without leave of the Court expressly recorded in the said proceedings cannot enter into compromise on behalf of the minor with reference to the suit. By Act No. 104 of 1976 with effect from 1-2-1977 sub-rule (1-A) has been added to Rule 7 of Order XXXII, C. P. C. according to which application for leave/permission shall be accompanied by affidavit of GAL and also certificate of the Counsel of the minor, if any, to the effect that proposed compromise is for the benefit of the minor. In the instant case no such affidavit of GAL was filed. Accordingly I find that the order passed by the appellate Court is erroneous in law and liable to be set-aside.