Full Judgment
W.P.9653 o”
21. 6.2013 Shri Devendra Shukla, learned counsel for the petitioner.
Heard on the question of admission.
Petitioner/defendant no.2 has filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 9.4.2013, passed by Civil Judge Class Laudi, District Chhatarpur in Civil Original Suit No.16-A/2011, whereby his application filed for dismissal of the suit, on the ground that Chetram Rajput son of Sukhlal Rajput, who has filed the impugned suit on behalf of respondent no.1 & 2 the minors as their next friend and guardian, being not working in their welfare is not entertainable, has been dismissed.
Petitioner’s counsel after taking me through the papers placed with the petition argued that the aforesaid next friend and guardian of minot respondents no.1 & 2 contrary to their interest, has sold their property and accordingly, he is not working in the welfare of such minor, therefore, the suit filed by such next friend and guardian could neither be entertained by the trial Court not the same could be adjudicated.
But the trial Court taking into consideration some order of the District Court passed in some other case appointing the aforesaid person as next friend and guardian of the minors-respondents no.1 and 2, dismissed his application holding that such person has been appointed by the District Court as next friend and guardian of the same minors in some other case, then such person could not be debarred to contest the impugned suit as next friend and guardian of the aforesaid minors contrary to aforesaid order of the District Court.
Such approach of the trial Court is not in accordance with law and prayed for setting aside such order and allowing his application by admitting and allowing this petition.
Having heard the counsel at length, keeping in view his arguments, I have carefully gone through the papers placed on the record.
It is apparent fact on record that the aforesaid person namely Chetram, has been contesting and defending the impugned suit as next friend and guardian and he has already been permitted by the District Court in some other case to contest the matter as guardian of such minors and such order has neither been set aside not cancelled by the District Court in such case and in such premises, the trial Court has dismissed the petitioner’s application.
I am of the considered view that on earlier occasion if the person is appointed as Guardian or/and next friend of the minot to prosecute or defend the case in some other matter for the minors and such order is in existence, then such next friend/guardian could not be deprived to defend the interest of minors of the other suit.
In such premises, mere on the aforesaid application of the petitioner the impugned suit could not have been dismissed contrary to the interest of the minors by the trial Court.
In the aforesaid premises, this petition does have any force.
Consequently, the same deserves to be and is hereby dismissed.
However, petitioner is extended a liberty to amend his written statement with respect of the facts stated in the impugned application for rejection of the suit and the trial Court is directed that on filing such application, the same be considered in accordance with the procedure prescribed under the law and on allowing such application, by framing the separate issue on the question, the same be decided after extending the opportunity to the parties to adduce the evidence.
Petition is dismissed with aforesaid observations, direction and liberty.
(U.C.Maheshwari) Judge Pb