GANESH SINGH LALSINGH KSHATRIYA Vs. GOVIND GANESH BAKRE

JUDGEMENT

(1.) THIS appeal is filed by two persona, namely the Court reader and Mt. Puniabai, who both claim to represent the minor appellants interest as his guardian ad litem, It is unnecessary to state the facts in the ease as the real point involved is whether the appeal filed on behalf of the minor in the lower appellate Court by Mt. Puniabai representing herself as the next friend of the minor was tenable. The lower appellate Court dismissed the appeal on a preliminary ground that Mt. Puniabai was not formally appointed a guardian by the Court and that therefore she was incompetent to file the appeal.

(2.) THE suit was filed against the minor Ganeshsingh and his father Lalsingh and his uncle Ishwarsingh on the allegation that they were all members of a joint family, for possession of certain khudkasht fields which had been sold as appurtenant to a 16 anna proprietary share of mauza Kora in an auction sale held on 19th March 1938 and purchased by the plaintiff. The minor's father and uncle did not enter appearance and the case proceeded ex parte against them. The plaintiff then proposed Mt. Puniabai as a guardian ad litem to represent the minor Ganeshsingh. She was served for the hearing on 23rd April 1940 but remained absent. At the next hearing Mr. Rauf, pleader, appeared for Puniabai and informed the Court that she was willing to accept the duties of the guardian ad litem, but he requested for an adjournment to obtain power from her. The Court declined to grant the request and appointed the Court reader as guardian ad litem after ordering the plaintiff to deposit Rs. 20 for appointing a pleader with instructions that he should engage Mr. Wahab as a pleader and file a written statement. At the next hearing, which was on 3lst July 1940, Mr. Wahab appeared for the Court reader and filed a written statement on his behalf. On 13th August 1940 Mr. Wahab appeared for the Court reader as guardian for the minor and Mr. Rauf pleader also was allowed to appear in Court as pleader appointed by Mt. Puniabai. Mr. Wahab filed certain documents on behalf of the minor. On 13th November 1940 three witnesses were examined on behalf of the minor but Mr. Rauf did not attend. He attended on 5th February 1941 on which day Mr. Wahab examined again four witnesses for the minor. On the application of Mr. Wahab an order was issued for the examination of a witness, Mr. Dube, on commission. Mr. Hayat pleader declared himself as a pleader appointed by Mr. Rauf and claimed the right to represent the minor before the commissioner but the commissioner declined to give him permission. Throughout the proceedings in the lower Court the guardian ad litem for the minor was the Court reader. Mr. Rauf pleader appeared at two hearings on behalf of Mt. Puniabai. He did not apply for the removal of the Court reader from the guardianship and the appointment of Mt. Puniabai in his place and the result was that a decree was passed against the minor and the Court reader was shown as his guardian and both Messrs. Wahab and Rauf were mentioned as pleaders for the minor.

(3.) MUCH argument is addressed to show that the lower appellate Court's order dismissing the appeal was wrong. It was said that Order 32, Rule 3, Sub-rule (5), Civil P.C., has no application to the case of a minor appellant. I do not see any reason to accept this contention as the wording of that provision of law is clear and unambiguous. It says that a person appointed to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court. If the Legislature intended to restrict the operation of Sub-rule (5) of Rule 3 of Order 32, only to the case where a minor is a respondent, it would have made a provision in Order 32 similar to Rule 11 of Order 22, Civil P.C. I have no doubt that the person who is appointed as guardian by the Court is the only person competent to file an appeal on his behalf. As pointed out in Amar Chand v. Nem Chand A.I.R. 1942 All. 150 there is a difference between a guardian ad litem and a next friend, in that whereas a guardian ad litem is constituted by an order of the Court, a next friend automatically constitutes himself by taking steps in the suit. Consequently, in the present case the only person who was competent to prefer an appeal on behalf of the minor was the Court reader who had been duly constituted guardian ad litem of the minor. Puniabai had no locus standi in the case. She was not a party nor had she been formally appointed guardian ad litem. She ought not to have been allowed in the suit to represent the minor as he was already represented by the Court reader who filed the written statement and the available documentary evidence on his behalf. There was nothing left for Mt. Puniabai to do in the interests of the minor. At all events, if she wanted to appear in the case as guardian ad litem, it was incumbent on her to have made a formal application for the removal of the Court reader and the appointment of herself in his place. Her omission to do so clearly proves that she had no objection to the Court reader's continuing as guardian ad litem. She could not therefore be recognized as a person competent to file the appeal which she did on behalf of the minor. The presentation of the appeal being ab initio void, it could not be validated by the Court reader merely empowering her pleader to represent the minor after the appeal had become barred by time. The matter is no doubt of a technical nature but the technicality has to be enforced to prevent abuse of the process of the Court. The appeal is dismissed with costs.