JUDGEMENT
ARUN BHANSALI, J. -
(1.)THIS revision petition is directed against the order dated
31.5.2013 passed by Additional District Judge No.2, Udaipur, whereby the application filed by the petitioners under Order VII,
Rule 11 CPC has been rejected.
(2.)BRIEF facts of the case may be noticed thus : one Prakash and Miss Pushpa, minor children of late Paratiya filed a suit for
cancellation of sale deed dated 26.6.2012 and permanent
injunction, inter -alia against the petitioners through their uncle
Amba Lal.
An application was filed by the petitioners under Order VII, Rule 11 CPC, inter -alia with the allegations that Amba Lal has
wrongly filed the suit as guardian of Prakash and Miss Pushpa
and such suit was not maintainable as per provisions of Order
XXXII CPC as under the said provisions it is only the natural
guardian, who can file the suit as next friend and plaintiffs' grand
mother Gaindi Bai was still alive. Further averments were made
that the suit could only be filed by the natural guardian or
guardian appointed by the Court and third person cannot file a
suit. It was also claimed that the plaintiffs have no cause of
action and Amba Lal cannot question the sale and as such the
suit was not maintainable.
(3.)THE trial court after hearing the parties by the impugned order dated 31.5.2013 came to the conclusion that provision of
Order XXXII, Rule 4 CPC does not require that the suit has to be
filed by a natural guardian only and consequently, dismissed the
application under Order VII, Rule 11 CPC filed by the petitioners.
It is submitted by learned counsel for the petitioners that the over all scheme of Order XXXII provides that a suit by or against minor can only be filed by the natural guardian and / or person entitled under the provisions of the Hindu Minority and Guardianship Act, 1956 ('the Act') and no one else can file a suit as next friend. It was submitted that if the intention of legislature is gathered then provisions of Order XXXII, Rule 3 CPC would also apply to a suit by the minor and as admittedly Amba Lal is neither a natural guardian nor guardian appointed by the Court he is not entitled to maintain the suit.
Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.