JADUMANI NAIK Vs. JYOSTNA NAIK

JUDGEMENT

(1.) This revision is directed against an order passed by the trial Judge declaring a compromise invalid so far as plaintiff No. 3 was concerned.

(2.) In Title Suit No. 145 of 1977 plaintiffs 1 to 5 and defendants 7 to 11 entered into a compromise. Plaintiff Nos. 3 to 5 were minors. So, the guardian sought permission to sign the compromise petition on behalf of the minors. Permission having been granted, the guardian entered into the compromise. The compromise was recorded. Subsequently plaintiff No. 3 on attaining majority filed an application for recall of the compromise, so far as she was concerned, on the ground that the compromise had been fraudulently obtained and the requirements of O.32, R.7 of the Civil P.C. had not been complied with. She contended that new sub-rule (IA) of R.7 of O.32 mandatorily required that an application for leave under sub-rule (1) should be accompanied by an affidavit of the next friend or guardian to the effect that the agreement or compromise proposed was in his opinion for the benefit of the minor. No such affidavit having been filed by the guardian, the application for leave was not in accordance with law and the permission granted was, therefore, invalid and the compromise was vitiated. The learned trial Judge accepted the contention and recalled the compromise so far as plaintiff No. 3 was concerned.

(3.) Rule 7 of O.32 is designed to safeguard the interests of a minor during the pendency of a suit against hostile, negligent or collusive acts of a guardian. It is therefore imperative that R.7 should be strictly complied with. Non-compliance of the mandatory provision would entitle the minor to avoid the compromise if he so chooses. Sub-rule (IA) which was inserted by the Civil P. C. (Amendment) Act, 1976 reads as hereunder : "An application for leave under sub-rule (I) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor." Even before the amendment, Madras, Kerala and Karnataka had introduced a similar provision. In Rajeswararao v. Satyanarayana, AIR 1946 Mad 377, the pleader guardian had not furnished the certificate as required by the Madras amendment (also required now by the new sub-rule (IA)). It was held that absence of the certificate affected the compromise. The learned Subordinate Judge was therefore clearly right in holding that failure to file an affidavit with the application for leave under new sub-rule (IA) of R.7 of O.32 vitiated the compromise and the minor on attaining majority could reopen the compromise so far as she was concerned. I uphold the order.