MURARI KRISHNA PRASAD SINHA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard the learned counsel for the parties.

(2.) THIS revision petition has been preferred against the order dated 21.4.1999 passed by Sub -Judge, I, Jamtara (Eviction Suit No. 27/93) whereby the prayer made on behalf of the plaintiff - petitioner allowing them to amend the plaint to the effect that the minors defendant nos. 4, 5, 8 and 9 should be represented by the natural guardian of the mother had been rejected when objections were raised by Opposite party and by the impugned order the whole suit has been held to be non -maintainabie by rejecting the prayer of the plaintiff - petitioner. The eviction suit was filed against several persons out of them four defendants were minors. In the body of the plaint they were asked to be represented by defendant no. 1 as guardian ad -litem. Notices were served on the defendant no. 1 but he filed written statement without mentioning anything in respect of the minors and thus the minors remained unrepresented but at that stage no steps were taken either by the Court below or by the plaintiff. After the evidence was closed and the argument was heard and when the same was pointed out then the plaintiff -petitioner belatedly filed petition for making minor defendants to be represented by the natural guardian mother as contemplated under Order 32 rule 3 of the CPC but that was objected. Some defects are there in this petition also as the same was not supported by affidavit. But it cannot be out of sight of the facts that when the minors are represented either by next friend or by guardian ad -litem and the minors had not been represented by the next friend then it is duty of the Court to see the protection of the interest of the minors and at that time the Court should have appointed the guardian ad -litem for and on behalf of the minors but that was not done. But definitely the plaintiff was also in laches. If we revert to Rule 3 (A) newly added under Order 32 of the CPC, then also it could be found that even a decree if passed against the minors not being properly represented then also such decree may not be said to be infructuous unless it could be shown that the same has been passed to the prejudice of the minors. The present case is an eviction suit wherein aii the majors are residing and occupying the suit premises along with the minors. In that way it cannot be said that much prejudice has been caused in non -representation of the minors. However, when decree has not yet been passed change ought to have been giyen to cure the defects and for laches on the part of the plaintiff costs could have been imposed on the plaintiff. But the whole suit could not be held to be infructuous as has been held by the impugned order.