HABIB TELI Vs. ALI TELI

JUDGEMENT

(1.) THIS is a revision application directed against the order of District Judge Baramulla dated 13 -9 -65 whereby he has remanded the case to the trial court, Sub -Judge Baramulla which had been decreed by him on 30 -9 -63.

(2.) THE facts involved in this case need not be discussed in detail. The trial court has after taking the written statement, striking the issues, and taking the evidence decreed the suit after giving a finding on the issues raised in the case. The lower appellate court has disposed of the appeal before it on a very simple ground that Ali Teli a minor defendant was not properly represented before the trial court and, therefore, the whole proceedings are void. The original suit was brought by Rehim Teli and others against Abdulla Teli defendant No. 1 and Ali Teli minor defendant No. 2 under the guardianship of Abdulla Teli. Notice of the suit was sent to the defendant which was served personally on Abdulla Teli both in his personal capacity and as guardian of the minor Ali Teli. It may be incidently mentioned here that Ali Teli is the real son of Abdulla Teli but is alleged to be the adopted son of Remzan Teli. Abdulla Teli appeared in the court and the order of 22 -7 -59 is that Abdulla Teli appeared in his personal capacity and as guardian of Ali Teli minor. Subsequent orders also indicated that Abdulla Teli has been appearing in his personal capacity as well as guardian of his minor son Ali Teli. However, in the written statement filed by Abdulla Teli on 24 -8 -59 in the preliminary objections Abdulla Teli has stated that he did not like to act as a guardian of Ali Teli minor and some body else may be appointed as guardian. Then written statement purported to have been filed on behalf of defendant No. 1 alone. Even on that date i. e. 24 -8 -59 Abdulla Teli appeared as guardian of the minor and in the subsequent proceedings also as the orders indicate Abdulla Teli has been appearing as guardian of the minor. These facts I may mention only to give a brief narration of the proceedings in the trial court. The trial court struck issues on 25 -11 -59 and those issues also indicated that the burden of proof of the relevant issues had been placed on the defendants. After recording the evidence of the parties the trial court decreed the suit. The lower appellate court, as already indicated has set aside this decree and remanded the case to the trial court on the point that the minor has not been properly represented in the trial as Abdulla Teli had in his preliminary objections in the written statement objected to act as guardian of the minor All Teli. In this revision application it has been contended that the order of the lower appellate court should be set aside. The learned counsel for the respondent has however, drawn my attention to an authority of this court reported as 1959 J & K, 122 wherein my predecessor in office Mr. Justice Nair has said :

(3.) I am afraid this authority will not help the respondent. In this case the question is of embroiling itself in comparatively unimportant aspect of the case and as I would point out that no illegality has been committed which would not oust the jurisdiction of the court. In the case before me a most superficial and a cursory view of the fact has been taken and the remand order passed simply on one line in the preliminary objection of the defendant that Abdulla Teli was not prepared to act as guardian for the minor Ali Teli I shall recount the circumstances which have compelled me to set aside the order of the lower appellate court.