ORDER
1. The issue in the present revision is narrowed down to whether the provisions of Order 32 Rule 12, CPC which apply to minor plaintiff can be made applicable to minor defendant also?
2. A few relevant facts leading to this proceeding need be noted at the outset to highlight the nature of controversy posed for my consideration.
3. A suit for specific performance, declaration and possession in respect of suit property was filed in the trial Court by the plaintiff non-petitioner No. 1 (for short the plaintiff) against the defendant petitioner (for short defendant) and defendants non-petitioners Nos. 1 to 13(for short the other defendants'). The defendant was minor at the time of institution of the suit and as per the plaint notices were sent to the defendant through his natural mother Smt. Savitri Devi, However, in para 13 of the plaint it was averred that the defendant was sued through Rameswar Dayal Advocate (other defendant No. 14) as he was stated to be guardian of the defendant who was minor.
4. Other defendant Rameshwar Dayal, Advocate who himself was arrayed as defendant submitted written statement for himself and on behalf of the defendant jointly. Upon attaining majority the defendant filed an application seeking directions from the Court in the name of plaintiff to amend the plaint impleading the defendant in his independent capacity so as to enable him to put forward his own stand independently.
5. The plaintiff contested the application raising objections that written statement on behalf of the defendant had already been filed and there was no provision to allow the defendant to file written statement again.
6. The learned Court below dismissed the application of the defendant vide order dated July 2, 1996. Against this order present action for filing the revision has been resorted to.
RIVAL CONTENTIONS
7. What was vehemently argued, however to assail the impugned order was that provisions of Rule 3 or Order 32, CPC were not followed by the learned Court below. Sub-rule (2) of Rule 3 of Order 32 enjoins upon the plaintiff to move an application and get the order for appointment of guardian for the minor for the purpose of suit, who can act in the name and on behalf of the minor. The procedure for deciding the application has been prescribed in Sub-rules (3) and (4). The Court, thereupon, can appoint father, mother or some other person as guardian of the minor. In the instant case no application under Rule 3 of Order 32 was moved by the plaintiff. Rameshwar Lal Advocate who was made guardian of the defendant, by the plaintiff suo moto, was not appointed by the Court under the provisions of Rule 3 of Order 32. Other defendant Smt. Savitri Devi, the natural mother of the defendant and through whom the summons was served upon the defendant, filed her separate written statement. Rameshwar Lal Advocate filed written statement for himself and also mentioned that he was filing the said written statement also on behalf of the defendant. The learned Court below without applying the judicial mind passed the order mechanically. The provisions contained in Order 32, Rule 12 read with Order 8, Rule 9 are attracted in the instant case. Reliance was placed on V. Anil Kumar v. J. Krishna Murty, AIR 1995 Andh Pra 105, Shiva Kumar Singh v. Kari Singh, AIR 1962 Patna 159, Rajeev v. D.N. Mathur, (1977) 1 WLC (Raj) 7l.
8. Strenuous efforts were made on the other hand, supporting the order impugned. Much was attempted to be made out from Rule 9 of Order 8. CPC which permits filing of additional written statement with the leave of the Court. It was canvassed that neither such leave was sought nor prayer was made for amending the written statement filed earlier by the guardian but only relief was sought from the trial Court for directing the plaintiff to amend the plaint impleading the defendant in the independent capacity, therefore the order does not suffer from jurisdictional error. Reliance was placed on Milind Saran Kothiwal v. Vinod Kumar Gupta, AIR 1987 All 339 and Malkiyat Singh v. Om Prakash, AIR 1995 Raj 38.
STATUTORY BACKGROUND
9. In order to thrash out the rival submissions, a look at the relevant statutory provisions is necessary. Order 32, Rule 3 reads as under :
'3. Guardian for the suit to be appointed by Court for minor defendant.-- (1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest kin the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
(4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian of the minor or where there is no father, mother or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.
(4A) The Court may, in any case, if it thinks fit, issue notice under Sub-rule (4) to the minor also.
(5) A person appointed under Sub-rule (1) 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 and any proceedings in the execution of a decree.'
Order 32, Rule 12 reads thus :
' 12, Course to be followed by minor plaintiff or applicant on attaining majority.-- (1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.
(2) Where he elects to proceed with the suit or application he shall apply for an order discharging the next friend and for leave to proceed in his own name.
(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus :--
'A.B. late a minor by C.D. his next friend, but now having attained majority.'
(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant, apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.
(5) Any application under this rule may be made ex parte; but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.'
Order 6, Rule 16 reads as under : ' 16. Striking out pleadings.-- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading--
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the Court.'
10. The object of Order 32, Rule 3, CPC is to see that the minor's interest does not suffer and that he is properly represented in a suit filed against him. The Court should be satisfied not merely that the proposed guardian is a fit and proper person to act as guardian but also that he has no interest, directly or indirectly adverse to the minor. It is well settled that a decree passed against a minor not properly represented must be regarded as a decree passed against a person not a party to the suit and is without jurisdiction.
MINOR PLAINTIFF AND MINOR DEFENDANT
11. Where the minor plaintiff, attains majority during the pendency of the suit and elects to proceed with the suit he can apply for an order discharging his next friend and for leave to proceed in his own name and for correcting the title of the suit in accordance with the provisions contained in Order 32, Rule 12 Sub-rules (2) and (3) but no provision has been made in the Code in respect of a minor defendant attaining majority during the pendency of the suit. The reason for the omission to make provision in respect of minor defendant attaining majority, appears to be that while a plaintiff on becoming a major can as a dominus litus, elect to go on with or put an end to the litigation, the defendant has no such choice available to him and suit must proceed against him notwithstanding his becoming a major.
12. But it has to be examined as to whether a person who was not appointed guardian for the suit for a minor defendant under Sub-rule (1) of Rule 3 of Order 32, can he continue as such even on attaining majority by minor defendant? What is the course open for the Court if the minor defendant on attaining majority applies for an order discharging his so called guardian and for leave to contest the suit in his own name-and for directing the plaintiff to amend the title of the suit? Can the Court say that provisions contained in Order 32, Rule 12, CPC are only applicable to the minor plaintiffs and not on the minor defendants? The facts that emerge in the instant case, have magnified these questions and I have to search answers to these interesting legal issues.
13. In the case on hand, indisputably defendant petitioner was minor at the time of institution of the suit. His natural mother Smt. Savitri Devi was also impleaded as defendant. Summons was served upon the defendant petitioner through her but she was not made guardian of the defendant petitioner. In para 13 of the plaint it was averred that the defendant petitioner was sued through Rameshwar Lal Advocate, as he was stated to be the guardian of the defendant minor. Rameshwar Lal Advocate himself was also impleaded as defendant in the said suit.
CONCLUSION
14. The trial Court did not take care to satisfy itself about the fact of minority of the defendant petitioner and procedure contained in Order 32, Rule 3 Sub-rule (1) was not followed. The plaintiff did not choose to file application under Sub-rule (2) and (3) of Rule 3 of Order 32 for appointment of guardian of the defendant petitioner. It was incumbent upon the plaintiff under Sub-rule (3) of Rule 3 Order 32 to file an affidavit verifying the fact that the guardian had no interest in the matters in controversy in the suit adverse to that of the minor and that he was a fit person to be so appointed. Even if Rameshwar Lal advocate was shown as guardian of the defendant petitioner, it was necessary for the plaintiff to file an application before the Court duly supported by affidavit seeking an order for the appointment of Rameshwar Lal advocate as a guardian of the defendant petitioner for the suit. Provisions contained in Rule 3 of Order 32 are mandatory in nature but they were flouted by the plaintiff as well as by the learned Court below and the defendant petitioner who was a minor at the time of institution of suit was not properly represented and if ultimately a decree is passed against him it will be regarded as a decree passed against a person not a party to the suit and will be without jurisdiction, as observed by me in the earlier paras of this judgment. In such a situation if the minor defendant on attaining majority applies for an order discharging Rameshwar Lal advocate, his so called guardian, and for leave to contest the suit in his independent capacity and for directing the plaintiff to amend the title of the suit, the Court can direct the plaintiff to amend the plaint under Order 6, Rule 16 read with Section 151 of the Code of Civil Procedure. In my considered view provisions contained in Order 32, Rule 12 can be made applicable to the defendant with the help of Order 6, Rule 16 and Section 151, CPC, if guardian is not appointed under Order 32 Rule 3(1)(2) and (3).
15. Viewed from other angle also, Sub-rule (5) of Rule 3 of Order 32 says that Sub-rule (1) of Rule 3 of Order 32 shall continue as such throughout the proceedings unless his appointment is terminated by retirement or removal or death. But if he is not appointed under Sub-rule (1) can he continue as such? The answer shall be in negative. The minor defendant in such a situation on attaining majority can apply to the Court to remove the name of guardian and the Court will have no alternative except to correct its mistake (in not invoking the provisions of Sub-rules (1), (2) and (3) of Rule 3 of Order 32) by allowing the application removing name of so called guardian with a direction to the plaintiff to amend the plaint.
16. Every party is entitled, ex debito juslitiae to have the case against him presented in an intelligible form, so that he may not be embarrassed in meeting it. The Court under the provisions of Order 6, Rule 16 may at any stage of the suit can direct the parties to amend any matter in the pleading which may tend to prejudice or embarrass fair trial or which is otherwise an abuse of the process of the Court. In the case on hand the defendant petitioner when he was minor was not properly represented and was sued through one Rameshwar Lal Advocate. The learned Court below also did not invoke the legal provisions for appointing his guardian. Therefore the defendant is within his right when he seeks direction from the Court for striking the name of Rameshwar Lal Advocate as his guardian. Nothing is more embarrassing to a defendant than to face such asituation on attaining majority.
17. In view of the discussions made herein above it is now not necessary to examine the ratio of the cases cited at the bar. The defendant, as already observed by me, was not properly represented therefore the defendant is not bound by the written statement filed on his behalf. At the cost of repetition I may again say that a decree passed against a minor not properly represented must be regarded as a decree passed against a person not a party to the suit and is without jurisdiction. Therefore all proceedings taken against the defendant before he attained majority, shall be treated against a person who was not a party in the suit. The provisions of Order 8, Rule 9 or Order 6, Rule 17 or Section 151 in respect of filing of written statement by the defendant petitioner in the instant case are not attracted.
18. It has shocked my judicial conscience that the learned Court below has, firstly, did not care to invoke the provisions of Order 32, Rule 3 in appointing the guardian of the defendant petitioner, when he was minor and secondly, on his attaining majority when he applied for removing the name of so called guardian, dismissed his application discussing rival contentions in twenty nine lines and judicial observation only in 'one line'. The jurisdictional error committed by the learned Court below, if allowed to stand would occasion failure of justice.
19. Consequently, I allow this revision and set aside the impugned order. While accepting the application of the defendant petitioner, I direct that the plaintiff shall file amended plaint amending the title showing the defendant petitioner as major. Thereafter the defendant petitioner shall be allowed to file written statement. All the proceedings which were taken during the minority of the defendant shall be treated as without jurisdiction against him. The amended plaint shall be filed within 14 days from today. Costs easy.