The captioned writ petition is filed on behalf of

minor plaintiff questioning the impugned order dated

02.02.2022 passed by the learned I Additional Senior

Civil Judge and CJM, Mysuru in Mis.Pet.No.03/2020 on

I.A.No.7 filed under Order 32 Rule 3(1) read with

Section 151 of CPC as per Annexure-F.

2.

The present petitioner is a minor plaintiff who

has instituted a suit for partition and separate

possession against his father who is arrayed as

defendant No.1. The minor plaintiff has filed the

application under provision of Order 32 Rule 1 of CPC,

seeking relief to prosecute the suit as an indigent

person. The partition suit was instituted by the minor

plaintiff through his natural guardian i.e., paternal

grandfather. Pending suit, the next friend who was

unable to attend the Court executed a General Power

of Attorney in favour of one Savitha Nagananda. On

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account of death of next friend, the said Savitha

Nagananda

moved

an

application

in

I.A.No.7,

requesting the Court to permit her to prosecute the

suit on behalf of minor plaintiff as a next friend. The

said application is rejected by the learned Trial Judge

on the premise that the said Savitha Nagananda was

prosecuting the suit on the basis of General Power of

Attorney which stands terminated on account of death

of next friend. Therefore, the learned Trial Judge was

of the view that the present applicant cannot seek

appointment as a guardian to the minor plaintiff.

3.

The learned Trial Judge has proceeded on an

assumption that this application is moved on the basis

of General Power of Attorney which is already

terminated on account of death of next friend who is

non other than paternal grandfather of minor plaintiff.

The second ground on which this application is

rejected is that learned Trial Judge was of the view

6

that if the present applicant intends to act as a

guardian, then she has to obtain a guardianship

certificate through a competent Court. On these

grounds, the said application is rejected, which is

under challenge.

4.

Heard

learned

counsel

appearing

for

the

petitioners and learned High Court Government

Pleader.

5.

Since the application is filed seeking permission

to prosecute the suit on behalf of minor plaintiff, this

Court is of the view that the notice to contesting

respondent is not necessary. The order under

challenge is not at all sustainable. If at all the Court is

not satisfied with the averments made in affidavit filed

in support of the application, the Court can call upon

the applicant to furnish better details. As rightly

pointed out by the learned counsel appearing for the

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petitioner, the present applicant is also relative of

minor plaintiff. The paternal grandfather who has

instituted the suit on behalf of minor plaintiff, during

his lifetime executed a General Power of Attorney in

favour of applicant herein and she was, in fact,

prosecuting the suit on the basis of General Power of

Attorney. Apart from the authorization under General

Power of Attorney, the applicant also claims that she

is a close relative of the minor plaintiff.

6.

It is in this background, this Court would find

that it was incumbent on the part of Court to see that

minor plaintiff in the suit needs to be properly

represented. Even if the learned trial Judge was of the

view that the present applicant is not competent to

act as the natural guardian, the Court ought to have

adopted recourse available under Order 32 Rule 10 of

CPC. By summarily rejecting the application, the

learned Trial Judge has virtually non-suited the minor

8

plaintiff, as the consequences on rejection of the

application seeking appointment of guardian would

follow in terms of Order 32 Rule 2 of CPC.

7.

The present suit is one for partition and separate

possession and there are serious allegations attributed

towards the respondent/defendant No.1. The next

friend who is non other than paternal grandfather of

minor plaintiff and father of defendant No.1, has

specifically stated that the minor plaintiff is so