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1994 Supreme(MP) 387
1994 JLJ 338
Shacheendra Dwivedi, J.
Naraindra Kumar v. Anil Kumar and another
Misc. Petition No. 317 of 1992; against the order passed by First Additional
Judge to the Court of District Judge, Guna; Decided on 27.4.1994.
Subject
Civil Law - Guardian Ad Litem
Act Referred
Headnote
Once a guardian ad litem is appointed such person continues in that capacity for the whole of the lis, until his appointment gets terminated by removal, retirement or death and the appeal can only be filed by such guardian on behalf of minor or person of unsound mind. Further, a person removed from guardianship earns a disqualification which would continue unless otherwise ordered by that Court or such removal is set aside by the higher Court. The petitioner, therefore, could not himself assume the status of guardian ad litem nor could be act as the next friend of the defendant/appellant. [Para 13
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Arun Mishra for petitioner; K.K. Lahoti for respondents.
Dwivedi, J. -- 1. The petitioner seeks the quashing of the order Annexure P/5 dated 18.11.91 passed by the First Additional Judge to the Court of District Judge, Guna, thereby holding the appeal preferred by the petitioner's father through him, as incompetent, and not main tenable, on the application preferred by respondent No.1 under Order 32 Rule 3 sub-rule (5) of the Code of Civil Procedure.
2. Respondent No.1 had filed a suit against the father of the petitioner named, Sugan Chand for his eviction on the ground of the genuine requirement. Since Sugan Chand, the defendant was of unsound mind, the petitioner was appointed as guardian-ad litem of defendant Sugan Chand but later on, the learned trial Court removed the guardian-ship of petitioner and appointed Shir Vilas Tikhe, Advocate, as guardian ad litem of the defendant. Ultimately on 31stAugust 1990, the judgment and decree was passed by the trial Court, decreeing the suit of the plaintiff-respondent No.1.
3. As against the judgment and decree, the appeal was preferred by the petitioner showing himself as guardian of the defendant. The objection about the competency of appeal, as filed, was taken by respondent on his appearance in the appellate Court. During the pendency of the appeal, defendant Sugan Chand died. Thereafter, an application was moved by the legal representatives of deceased Sugan Chand under Order 22 rule 3 of C.P.C. for the substitution of their names in place of deceased Sugan Chand on record.
4. Respondent No.1 filed a reply to this application contending that as the appeal itself was preferred by an incompetent person, therefore, in the appeal the substitution could not be sought. Respondent No.1 also filed an application under Order 32 Rule 3 sub-rule (5) of C.P.C. praying for the dismissal of the appeal in the above circumstances.
5. The learned appellate Court vide the order dated 18th November 1991 (Annex. P/5) dismissed the appeal as incompetent and not maintainable. The quashing of order Anenx. P/6 is prayed by the petitioner.
6. The petitioner contends that after the judgment and decree the guardian ad litem of Sugan Chand, namely, Shri Vilas Tikhe, Advocate did not prefer any appeal and the petitioner had preferred the appeal, for protecting the interest of defendant Sugan Chand, who was of unsound mind and was incapable of understanding his good or bad and was incapapable of taking any decision. While the appeal was pending, on the death of Sugan Chand the appellant), it was incumbent upon the appellate Court to make an inquiry about his legal representatives and to substitute them on record. The appeal could no'. be dismissed on the ground that it was filed by an incompetent person. The petitioner being the son of defendant Sugan Chand had the right as his next friend to file the appeal and, therefore, the order Annex. P/5 passed by the appellate Court is erroneous and illegal and, deserves to be quashed.
7. It was vehemently urged by the respondent-plaintiff's counsel, Shri K.K. Lahoti, that the petitioner could have absolutely no right of filing the appeal for the deceased defendant Sugan Chand. The learned trial Court had removed the petitioner from guardianship and has appointed Shri Vilas Tikhe, Advocate, as guardian ad litem of defendant Sugan Chand. Unless the guardian ad litem appointed by the competent Court was removed, none else had the authority of preferring any appeal and as such, the appeal preferred by the petitioner for defendant Sugan Chand could not be said to be competent or a valid appeal in the eye of law and has, therefore, been rightly dismissed by the appellate Court under the order (Annex. P/5).
8. The relevant provision in the Code of Civil Procedure is to be found in sub-rule (5) of Rule 3 of Order 32 which reads:
"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 arisin
