Jagmohan vs Gulabchand - 1978 Supreme(MP) 270

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Applicant : R.S. Saxena
For the Respondent: N.K. Modi

Headnote:(1) Civil Procedure Code, 1908 – O. 32, R. 15 – enacted to safeguard interest of a defendant – appointment of guardian ad litem – co – terminus with the unsoundness of mind – application for revocation of appointment of guardian ad litem lies when the defendant regains soundness of mind.
       (2) Civil Procedure Code, 1908 – S. 11 & O. 32, R. 15 – application for removal of guardian ad litem – such interlocutory orders capable of being varied on proof of new facts – cannot be treated to be res – judicata at the later stage of the suit.
        Short Note
       1. The plaintiff has filed a suit for specific performance of agreement for sale alleged to have been executed by the defendant non – applicant in his favour in respect of a house situate in Gwalior. After service of summons, wife of defendant, Smt. Sushiladevi appeared along with the defendant and submitted an application informing the Court that the defendant is a man of unsound mind. By order dated 24 – 3 – 77 the Court appointed Smt. Sushilabai, the wife of the defendant as his guardian ad litem. The suit went on hanging till the plaintiff submitted an application on 27 – 2 – 78 purporting to be under rules 12 and 15 of Order 32 read with section 151 CPC wherein it was stated that for a period of about 1 year, the defendant has ceased to be a man of unsound mind and is working as a normal man and attending his duties in the M.P. Electricity Board, Gwalior office and receiving his pay therefrom. It was prayed that the order of appointment of guardian ad litem, may be revoked. On behalf of the defendant no reply in writing was submitted, but the application was orally opposed. The defendant had also submitted an application on 28 – 1 – 78 praying that the plaintiff should be ordered to deposit Rs. 900 by way of expenses for examining expert, who is to be examined on behalf of the defendant. The application submitted by the plaintiff – applicant has been rejected and that submitted for the defendant – non – applicant has been allowed by ordering the plaintiff to deposit Rs. 500 by way of expenses for examination of the expert. Hence the revision by the plaintiff.
       Held : Rule 15 of Order 32 CPC has been enacted for safeguarding interest of a defendant. In a given case a defendant may either be (i) a person adjudged to be man of unsound mind or (ii) a person not so adjudged but found by the Court on enquiry, by reason of unsoundness of mind or mental infirmity to be incapable of protecting his interests. In such a case, a guardian ad litem has to be appointed in order to safeguard the interest of such a defendant. The appointment of guardian ad litem has to necessarily to be coterminous with the continuance of the unsoundness of mind or the mental infirmity of the defendant. A person appointed as guardian ad litem has no right to function as such in the case, after removal or cessation of the unsoundness of mind or mental infirmity of the defendant. If a person is shown to be of unsound mind or mental infirmity at a particular point of time, it may be that unsoundness of his mind or mental infirmity may not turn out to be a perpetual phenomenon, but may be a temporary phase only. In the present case, the plaintiff – applicant by moving the aforesaid application wanted to say so. Ex facie, there appears to be substance in the plaintiff's application in view of the fact that the defendant is admittedly serving in the Gwalior office of the Madhya Pradesh Electricity Board. In this view of the matter, application for revocation of the order of appointment of guardian ad litem of the defendant lies on the ground that he has regained soundness of mind or his mental infirmity stands removed. There is no legal impediment in the way of the plaintiff or the guardian ad litem or even the defendant after regaining soundness of mind, to apply to the Court for removal of his guardian for the suit. It is well settled principle that Courts may adopt procedure which is not shown to be prohibited by law. As held in Narsingh v. Mangal, ILR 5 All. 163 (172), Courts are not to act upon the principle that every procedure is to be taken as prohibited unless it is expressly provided for by the Code, but on the converse principle that every procedure is to be understood as permissible till it is shown prohibited by law. As a matter of general principle, prohibition cannot be presumed. The necessity of appointment of a guardian ad litem is only for protecting the interest of a defendant fulfilling the character of a person to whom rule 15 of Order 32 applies. The power to remove guardian ad litem is inherent in the power to appoint. It is in the interest of justice that on regaining of soundness of mind or mental infirmity his guardian ad litem may be ordered to be removed by revoking the order of appointment thereof made by the Court, so that the defendant may take it upon himself to fight his own battle in the manner he likes, and so that likelihood of a plaintiff facing a suit that may be brought untimely by the defendant on the ground that his guardian ad litem had no right to represent him on account of the factum of his regaining soundness of mind or removal of his mental infirmity, may be obviated. In this view of the matter, the application submitted by the plaintiff, applicant for removal of guardian ad litem of the defendant was competent. The trial Court has summarily rejected this application on the ground that it does not lie in view of the earlier order dated 24 – 3 – 77 and that (b) it is vague. Interim orders of the present nature cannot be treated to be res judicata at the later stage of the suit Arjunsingh v. Mohindrakumar, AIR 1964 SC 993, relied on. Order dated 24 – 3 – 77 is certainly an interlocutory order, which is liable to be varied or altered on subsequent application alleging new facts or new situation, which may subsequently emerge. Therefore the learned Additional District Judge acted illegally in considering the order dated 24 – 3 – 77 as an impediment to the maintainability of the application in question.
       2. As to the second ground, suffice it to say that the order rejecting the application on the ground of vagueness is itself vague. This Court has been taken through the application filed by the plaintiff for removal of the guardian ad litem of the defendant. It contains definite allegations to the effect that the defendant is no longer a man of unsound mind and that he has ceased to be a man of mental infirmity. The rejection of the application filed by the plaintiff on 27 – 2 – 78 discloses that the Court is conducting the suit in an illegal manner. Therefore the impugned order cannot be allowed to stand and deserves to be set aside. So far as the other part of the impugned order is concerned, the application on behalf of the defendant for expenses to enable the examination of handwriting expert, it has to mark time till the decision of the application for removal of the guardian ad litem for the defendant. Accordingly it has to be kept pending till then, Revision allowed.