Mishrilal vs Pukhraj and Others

S.N. Modi, J.—This is an appeal by one of the defepdants, namely, Mishrilal against the judgment and decree of the Civil Judge, Sirohi, in a suit for perpetual injunction.

The learned counsel for the plaintiff-respondents Mr. H.M. Parikh has raised a preliminary objection as to the maintainability of the appeal. According to him, the appeal is not maintainable by the appellant Mishrilal.

In order to appreciate the preliminary objection taken up by Mr. Parikh, it is necessary to narrate some relevant facts of the case.

The plaintiffs Pukhraj, Babhoot Mal, Umedmal, Premchand, (now dead) Jeevraj and Deepchand, who are respondents Nos. 1 to 6 in this appeal, instituted a suit for permanent injunction against the appellant Mishrilal, his brothers Ghanshyamlal, Devi Lal and Premshanker and his father Purshottam on 24-7-1962 in the Court of the Munsif, Bali. Mishrilal and Premshanker were shown as minors, aged 13 and 10 years respectively on the date of the suit, Since Purshottam the father of the minors, did not accept to act as guardian for his minor sons, Shri Raghunath Paribar, Advocate, was appointed as guardian-ad-litem of minors Mishrilal and Prornshanker under Order 32, Rule 3 CPC. The trial court decreed the suit against the defendants. An appeal was then filed by the defendants including the minors Mishrilal and Premshanker in the Court of the Civil Judge, Sirohi, on 1342-1965. In this appeal, Purshottam represented his minor sons Mishrilal and Premshanker instead of Shri Raghunath Parihar, Advocate, appointed as guardian-ad-litem by the trial court. The learned Civil Judge, Sirohi, after hearing the parties dismissed the appeal on merits. Mishrilal alone has now preferred this second appeal alleging that he bad attained the age of majority. The other defendants along with the plaintiffs were impleaded as respondents.

The contention of Mr. Parikh is that since Shri Raghunath Parihar, Advocate, had been appointed guardian-ad-litem by the trial court, the appeal before the learned Civil Judge should have been filed on behalf of the minor Mishrilal under the guardianship of Shri Raghunath Parihar instead of his father Purshottam. It is further contended that under Order 32, Rule 3 (5) CPC the guardian-ad-litem continues to be the guardian throughout the proceedings including the proceedings in the appellate court. He further urges that since no proper appeal was preferred in the lower appellate court on bebalf of Mishrilal, this second appeal by him is wholly misconceived, untenable and incompetent.

Sub-rule (5) of Rule 3 of O. 32 CPC runs as under :--

"Sub-rule (5) --

A person appointed under Sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree."

This Sub-rule (5) was inserted by the CPC (Third Amendment) Act (XVI of 1937). Prior to that, there was no statutory "provision as to the nature of the guardian-ad-litem appointed whether he continued only during the pendency of the suit or he continued during the pendency of the entire lis. Sub-rule (5) provides that a person appointed to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree. It is thus abundantly clear that under this sub-rule (5) the guardian of the minor who had been appointed in the suit while it was pending in the trial Court must continue even during the appellate proceedings, unless his appointment is terminated by retirement, removal or death. In the present case, admittedly the appeal before the lower appellate court was filed by Purshottam representing Mishrilal instead of Shri Raghunath Parihar Advocate who bad been appointed guardian-ad-litem by the trial court. There is no suggestion that the appointment of Shri Raghunath Paribar as guardian-ad-litem of the minor Mishrilal was ever terminated by his retirement, removal or death, In the circumstances, Purshottam representing his minor son had no authority to file the appeal on behalf of the minor Mishrilal. The only person competent to file an appeal on behalf of Mishrilal was Shri Raghunath Paribar Advocate. The appeal before the lower appellate court so far as the appellant Mishrilal was concerned was thus not filed by a competent person, and it cannot be treated as a valid appeal in the eye of law on behalf of the minor Mishrilal. I am supported in my view by several authorities including the Full Bench decision of the Allahabad High Court in Raj Behari Lal and Others Vs. Dr. Mahabir Prasad and Others, and the Division Bench decisions in Sultansing v. Rachhpal AIR 1953 Pepsu 129, Gulab Chand and Others Vs. Mt. Kishori Kuer, and Arakhito Ranto v. Pratito Ranto AIR 1953 Ori 343. It is not disputed before me that in case there was no valid appeal by Mishrilal before the lower appellate Court, Mishrilal had no right to file the present second appeal before this Court.

The preliminary objection taken up by the learned counsel for the plaintiff-respondents thus succeeds and consequently the appeal fails and it is dismissed with no order as to costs.