RIAZ AHMAD Vs. IVTH ADDITIONAL DISTRICT JUDGE KANPUR

JUDGEMENT

(1.) A partition suit was filed by Shahnawaz Alam and Parvez Alam along with their other two brothers and two sisters who were plaintiffs Nos. 3 to 6 in the suit against Smt. Noor Jahan @ Shammi Begum and Sri Riaz Ahmad as defendants. All the plaintiffs were sons and daughters of Riaz Ahmad and Smt. Noorjahan, wife of Riaz Ahmad. Now since the father Riaz Ahmad was defendant, therefore, the minors were represented by their elder brother Shahnawaz Alam. The said representation had the approval of the Court. The suit was ultimately decreed on compromise between the parties. In execution, one Iqtidar Ahmad was dispossessed. The said Iqtidar Ahmad filed an application under Order XXI, Rule 99, C.P.C. in which proceedings Shahnawaz Alam made an application that he does not want to continue as guardian of the minors. The said application was rejected by order dated 6th April, 1993 passed by the Additional Civil Judge in Misc. Case No. 8/74/93. Against the said order, a revision being Civil Revision No. 85 of 1993 was preferred by Shahnawaz Alam. By order dated 21st March, 1994, the revision was dismissed. It is against this order the present writ petition has been moved.

(2.) IN the writ petition, it appears that the said Riaz Ahmad and Smt. Shammi Begum had joined the plaintiffs and the minors were being represented by Shahnawaz Alam. The revision was also similarly moved. Therefore, it appears that there is an ad idem of interest between the parties by reason of joining of all of them together as petitioners both in the revision and in the writ petition though the parties were plaintiffs and defendants respectively. The plaintiff and the defendant in a suit cannot have the same interest. It is also to be noted that the suit was decreed on compromise and that has not been challenged. Therefore, it cannot be said that there was any interest adverse in between Shahnawaz Alam and the minors. Even Shahnawaz Alam has been representing the minors both in the revision and in the writ petition. The facts reveal that the said application was a device for the process under Order XXI, Rule 99, C.P.C. filed by Iqtidar Ahmad. The very representation of Shahnawaz Alam for the minors in the present case and the joining with the plaintiffs together shows that the device was being engineered by the entire set of parties in the partition suit together.

(3.) THEREFORE, I am unable to find out any infraction of law as laid down in the case of Ganga Saran v. District Judge, Hapur, AIR 1991 All 114, so as to interfere with the order impugned in exercise of writ jurisdiction.