1979 Supreme(MP) 465

IN THE HIGH COURT OF MADHYA PRADESH
S. S. SHARMA, J.
Govind - Appellant
Versus
Dr. C. C. Parmar - Respondent
S. A. No. 84 of 1978 (I)
Decided on : 08-10-1979

Headnote:Civil Procedure Code, 1908 - O. 32, R. 3 - appointment of guardian ad litem by Court for minor defendants - not a mere matter of form but is an imperative duty cast upon the Court - procedure for appointment of guardian ad litem not followed in passing the decree - decree a nullity - quashed.

       Short Note

       1. The respondent No. 1 Dr. C. C. Parmar filed a suit against the two appellants and six others who have been impleaded as respondents in the present appeal, for ejectment, arrears of rent and mesne profits. As disclosed in the plaint itself, some of the respondents were minors. It was not disputed that steps for appointment of guardian ad litem for the minors were not taken at any stage of the suit. Even in appeal before the lower appellate Court no steps were taken for appointment of guardian ad litem for the minor respondents were not even represented before the lower appellate Court. This second appeal however, has been filed by the two minor defendants

       2. Held : The procedure to be followed in suit by or against minors and persons of unsound mind has been dealt with in Order 32 of the Code of Civil Procedure. The appointment of guardian ad litem is not a mere matter of form but is an imperative duty cast upon the Court. The procedure for appointment of guardian ad litem has been dealt with in the different rules of Order 32 CPC. Learned counsel for the respondent No. 1 in all fairness did not dispute that owing to the non - appointment of the guardian ad litem for the minor defendants both in the trial Court as also for the minor respondents in the lower appellate Court, the decree would be a nullity. He in the circumstances and in the opinion of this Court rightly conceded that this appeal for that reason deserves to be allowed. The judgment and decree under appeal cannot, therefore, be upheld. The judgments and decree of both the Courts below are hereby set aside and the case is sent back to the trial Court for being proceeded with in accordance with law.