AMIR SINGH Vs. OM PRAKASH

JUDGEMENT

(1.) THIS first appeal from order is directed against the order passed by the lower appellate court rejecting an application whereby the present appellant sought leave of the said court to be brought on record as appellant no. 2 in the appeal which was pending in the said court. The brief facts involved in the appeal are these: One Bindeshwari Singh filed Suit No. 33 of 1968 in the Court of the Civil Judge. He was the sole plaintiff in the suit and it seems that he impugned certain gift deeds. The suit was dismissed and an appeal was filed in the lower appellate court. Bindeshweri Singh was the appellant and the defendants were impleaded as respondents. During the pendency of the said appeal, Bindeshwari Singh died and his son Musafir Singh moved an application for being substituted in the place of the deceased appellant. That application was allowed and Musafir Singh was brought on record in the place of the deceased appellant.

(2.) THE present appellant before me, Amir Singh, applied in the lower appellate court for being impleaded as appellant No. 2. In support of his application which purposed to be under O. 22 R. 10 read with S. 151 C.P.C., he filed an affidavit. He relied on an agreement dated 23rd Aug. 1969 which was alleged to have been entered into between him and the deceased Bindeshwari Singh - the latter happened to be the uncle of Amir Singh. THE other side filed objections. After hearing the parties, the lower appellate court rejected the application. One of the considerations which weighed with the said court was the fact that even though the agreement dated 23rd August, 1969 had been allegedly executed during the pendency of the suit, no application had been made by Amir Singh for being impleaded as a co-plaintiff in the said suit and the application was made in the lower appellate court some time in 1972 after Bindeshwari Singh had died. THE Court was also of the opinion that the presence of Amir Singh was not necessary before the court in order to enable it to effectually and completely adjudicate upon and settle the questions involved in the suit. THE court also observed that the son of the deceased respondent brought on record was prosecuting the appeal before the said court and lastly an observation was made that Amir Singh, if he had any interest in the subject-matter of the suit, could bring another suit. On the said grounds the application was rejected. Hence, he has come up in appeal to this court and in support thereof, I have heard Sri Laxmi Behari and in opposition Sri Prakash Gupta has made his submissions.

(3.) DURING the course of hearing, Sri B. B. P. Singh, advocate, drew my attention to a letter which he had addressed to the Deputy Registrar dated 23rd Feb, 1973 which is on record. He further drew my attention to the order sheet which shows that he took up the matter of fee payable to him as counsel on behalf of the respondent No. 6 before the court and he was directed to file an estimate of expenses. Thereafter he filed an estimate of expenses which also is on record. He desires that suitable orders be passed on the said matter. Respondent No. 6, it seems, had been impleaded in the suit as a minor defendant No. 6 aged about 16 years. The suit was filed in 1968. Therefore, in the ordinary course he attained majority some time in 1970. This F. A. F. O. was filed in 1972. Therefore, it was his duty to have informed the trial court that he had attained majority. It is true that in terms O. 32 R. 12 C. P. C. does not apply to the minor defendants. Still, the minor defendants on attaining majority, if they choose not to inform the court, cannot expect the cost of litigation on their behalf to be incurred by an Officer of the court appointed as a guardian, should be saddled on the shoulders of other parties. There seems to be no justification for burdening the other party with the costs incurred on behalf of a person who has already attained majority. In these circumstances, it seems to me that primarily it was defendant-respondent No. 6 who must be held responsible for the costs which were incurred on his behalf by the guardian appointed for his benefit by the trial court. In these circumstances, I think the defendant-respondent No. 6 should be directed to pay the amounts mentioned in the estimate which has been filed in this court on his behalf by his guardian ad litem. The said estimate shows that a sum of Rs. 220/- has been claimed as the counsel' s fee, Rs. 110/- as guardian fee and Rs. 30/- as miscellaneous expenses. The estimate seems to be reasonable. The defendant-respondent No. 6 shall pay the sum of Rs. 220/- to Sri B. B. P. Singh, Advocate who put in appearance in this appeal as a counsel on his behalf and the rest of the amounts, namely, Rs. 110/- and Rs. 30/- to Sri K. K. Srivastava, the guardian concerned.