THIAGARAJA MUDALI Vs. VNKOTHANDAPANI MUDALIAR

JUDGEMENT

(1.) The short point argued in this civil revision petition is whether it is open to a Court to refuse to permit a guardian ad litem to retire from a case. The petitioner argues first that the mere statement by the guardian that he wishes to retire is tantamount to a retiral and that after that statement he remains no longer a guardian; and secondly that even if he cannot actually retire without permission of the Court that permission cannot be refused.

(2.) As to the first point: the petitioner relies on the wording of Order 32, Rule 11 (2) arguing that the phrase used is merely "retires" and not "retires with permission" but the phrase in this sub-section of the rule must be subject to the foregoing subsection and "retires" as used in Sub-section 2 must import the conditions of a retiral set out in Sub-section 1.

(3.) As to the second point; the petitioner argues that "may permit" is equal to "shall permit" and that the rule is mandatory. I am not able to accept that contention. If the Court had no option it was unnecessary to insert any rule about the permission of the Court, since the retiral took place whatever the Court did or did not do. Some meaning must be read into the word "permission" and to say that permission cannot be refused is tantamount to saying that no permission is necessary. It is significant that the word "shall" is used in the sub-section which indicates that the word "may" was purposely used in Sub-section 1. It is also easy to see why permission of the Court is necessary. If the mere statement by the guardian that he wishes to retire puts an end to his guardianship, the trial of oases would be continually hampered by guardians retiring whenever they saw the case was going against them, in order to postpone judgment and decree as long as possible. The legislature has, therefore, provided that a guardian cannot throw over his duty at his own caprice. He must put forward be fore the Court satisfactory reasons for wishing to retire, in default of which he will not be permitted to retire.