KALU Vs. PRAKASH
LAWS(RAJ)-2013-10-52
HIGH COURT OF RAJASTHAN
Decided on October 30,2013

KALU Appellant
VERSUS
PRAKASH Respondents




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.