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1977 Supreme(P&H) 41
PUNJAB & HARYANA HIGH COURT
R.S.Narula, J.
Nand Ram
Versus
Karnail Singh
Civil Revision No. 1278 of 1976,
Decided On : MARCH 11, 1977
An application for appointment of the guardian ad litem of minor defendants can be made after the expiry of the period of limitation for filing the suit.
Headnote:
CIVIL PROCEDURE CODE - ORDER 7 RULE 1(D) AND ORDER 32 RULE 3 - AMENDMENT OF PLAINT - APPOINTMENT OF GUARDIAN AD LITEM - MINOR DEFENDANTS - LIMITATION - EFFECT OF NON-COMPLIANCE WITH ORDER 7 RULE 1(D) - APPLICATION FOR APPOINTMENT OF GUARDIAN AD LITEM AFTER EXPIRY OF LIMITATION PERIOD - VALIDITY.
Fact of the Case:
Plaintiff filed a suit for pre-emption of a sale effected in favor of three minor vendees. The plaintiff did not describe the vendees as minors in the plaint. When summonses were issued to the vendee-respondents, it was reported back that they were minors. The plaintiff then applied for leave to amend the plaint to add the word "minors" after the names of the vendee-defendants and to add a paragraph stating that the three vendee-defendants are minors and their father Dandi Ram is entitled to be appointed as their guardian. The plaintiff also filed a separate application under Order 32, Rule 3 of the Code for appointing Dandi Ram as the guardian ad litem of the minor defendants. Both applications were dismissed by the trial court on the ground that the limitation period for filing the suit had expired.
Finding of the Court:
The court held that the non-disclosure of the minority of the defendants in the plaint is not fatal to the suit and an application for appointment of the guardian ad litem of minor defendants can be made after the expiry of the period of limitation for filing the suit. The court relied on the judgments of Vivian Bose J. in Abdul Aziz V/s. Sk. Amir Musalman, AIR 1941 Nag 130, and the Division Bench judgment of the Allahabad High Court in Har Lal Singh V/s. Rudra Singh, AIR 1927 All 787, to support its decision.
Issues: 1. Whether the non-disclosure of the minority of the defendants in the plaint is fatal to the suit? 2. Whether an application for appointment of the guardian ad litem of minor defendants can be made after the expiry of the period of limitation for filing the suit?
Ratio Decidendi: The court held that the object of showing in the plaint that a particular party is a minor is just to bring the fact of the minority of the party to the pointed attention of the Court so that the Court may keep this fact in view at all appropriate stages. The court further held that the mere fact that the suit would be barred by time on the date on which the application for amendment is made or the amendment is allowed is by itself not necessarily a conclusive ground to earn dismissal of the application for amendment of the plaint.
Final Decision: The court allowed the petition, set aside the orders of the trial court dated 7.08.1976, and allowed both the applications of the plaintiff-petitioner. The court granted the plaintiff leave to amend the plaint to the extent indicated verbatim in the application under Order 6, Rule 17 of the Code and appointed Dandi Ram as guardian of the minor defendants for the purpose of the suit.
1. On 3.03.1975, the plaintiff-petitioner filed a suit for pre-empting the sale effected on 7.03.1974, in favour of three vendees all of whom were minors. Not knowing about their minority the plaintiff did not describe them as such in the plaint. When summonses were issued to the vendee-respondents it was reported back that they were minors. Thereupon the plaintiff made an application on 5.04.1976, for leave to amend the plaint. The amendment sought was:-
(1) to add the word minors after the names of the vendee-defendants and to add thereafter the words "ba-sarprasti Dandi Ram pita khud under the guardianship of their father Dandi Ram" and
(2) to add para 5(A) in the plaint after the existing para 5, wherein it was intended to be stated that the three vendee-defendants are minors and they live with their father Dandi Ram whose interest is not adverse to that of minors and that Dandi Ram is entitled to be appointed as their guardian.
The plaintiff also filed a separate application under Or. 32, R. 3 of the Code for appointing Dandi Ram as the guardian ad litem of the minor defendants. Both the applications were resisted on behalf of the vendees on the ground that the limitation for filing the suit in exercise of the right of pre-emption had expired on March 7, 1975, and that inasmuch as the two applications were made in April, 1976, these could not be allowed. By his order dated August 7, 1976, Shri V. P. Choudhry, Sub-Judge First Class, Narwana, has dismissed both the applications on the same ground. Not satisfied with that order the plaintiff has come up to this Court for revision thereof.
2. Mr. M. S. Jain, the learned counsel for the plaintiff-petitioner, has submitted that the entire approach of the trial Court to the question before it was contrary to law inasmuch as the nondisclosure of the minority of the defendants in the plaint is not fatal to the suit and an application for appointment of the guardian ad litem of minor defendants can be made after the expiry of the period of limitation for filing the suit. It is hot disputed that the names and particulars of the vendees have been correctly given in the plaint. What is missing in the plaint is only the requirement of O. 7, R. 1 (d) of the Code which states that the plaint of a suit shall contain the following particulars-
Order VII, 1. "(a) ... ... ... ...
(b) ... ... ... ...
(c) ... ... ... ...
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect."
Order 32, R. 3 of the Code requires that where the defendant in a suit is 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. The contention of Mr. Jain is that the appointment of a guardian of a minor for purposes of a suit can be made at any time during the pendency of the suit and need not be made before the expiry of the period of limitation for instituting the suit. Counsel has relied in this connection on the judgment of Vivian Bose J. in Abdul Aziz V/s. Sk. Amir Musalman, AIR 1941 Nag 130, wherein it has been held that it does not matter whether a defendant is a major or a minor for the purpose of the Limitation Act so long as the suit is brought against the correct person. The learned Judge held that the suit against a minor, so far as the Limitation Act is concerned, is against the proper person whether he is described as a major or a minor and is, therefore, within time if limitation has not expired on the date on which the suit is instituted by the presentation of the plaint. It was held that the question of guardianship is a separate matter and does not relate to the institution of the suit but to the right of the plaintiff to carry it on against the person who in fact happens to be a minor. It was further held that a suit is not a nullity until a guardian is appointed and it is not correct to say that no suit can be deemed to have been instituted until the guardi
