Madhya Pradesh High Court
Decd. Kaluram S/O Narayan Rathod Thr. ... vs Sitaram S/O Lala Rathore Thr. Lrs ... on 27 February, 2019
Equivalent citations: AIR 2019 MADHYA PRADESH 108, AIRONLINE 2019 MP 1099 (2020) 1 MPLJ 411, (2020) 1 MPLJ 411, AIRONLINE 2019 MP 1099
Author: Rohit Arya
Bench: Rohit Arya
1 M.P.No.5864/2018
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Miscellaneous Petition No.5864/2018
Decd. Kaluram s/o Narayan Rathod person
of unsound mind through proposed next
friend Smt. Ahilyabai
Vs.
Sitaram and others
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Shri Aniket Abhay Naik, Advocate for the petitioner.
Shri B.S.Gandhi, Advocate for the respondents No.1 to 5.
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Reserved on: 06/02/2019
ORDER
(27/02/2019) Rohit Arya, J Taking exception to the order dated 04/10/2018 passed in MJC No.77/2010 by III Additional District Judge, Badwani in the proceedings for formulation of final decree under Order 20 rule 18 read with section 54 CPC after finality of the preliminary decree dated 07/05/2007 in civil suit No.21A/2005 confirmed by this Court on 07/03/2014 in F.A.No.411/2007, Smt. Ahilyabai wife of Dineshchandra Rathod, sister of defendant No.8 has approached this Court under Article 227 of the Constitution of India proposing herself as next friend of petitioner/defendant No.8 Kaluram since dead (date of death 14/08/2018), a person alleged to be of unsound mind.
By the impugned order, the Court below has rejected three applications, viz., (i) an application under section 47 CPC objecting to passing of the final decree on the premise that the defendant No.8 Kaluram was a person of unsound mind but, as the trial Court did not follow the procedure under Order 32 rule 3 and 4 CPC for appointment of guardian ad litem, the preliminary decree dated 07/05/2007 is null and void; (ii) an application under Order 32 rule 5 CPC proposing herself as the next friend of Kaluram; and (iii) an application under Order 22 rule 4 CPC for impleading her as legal representative of Kaluram who has passed away during pendency of the instant proceedings on 2 M.P.No.5864/2018 14/08/2018.
The trial Court while rejecting the first application has assigned reasons to the effect that proceedings under Order 20 rule 18 read with section 54 CPC are not execution proceedings, therefore, section 47 CPC has no application inasmuch as, the said application empowers the executing Court to determine the questions of the nature described therender; while rejecting the second application under Order 32 rule 5 CPC; it has assigned the reasons to the effect that during pendency of the suit for partition and possession vide civil suit No.21A/2005 neither any objection nor an application under Order 32 rule 5 CPC was filed.
The plaintiff filed a suit for the claim of half share in the suit property inter alia pleading that the suit property was purchased by the original plaintiff, Sitaram and father of defendants, Narayan Rathod jointly vide registered sale deed dated 15/06/1966, therefore, after death of Narayan Rathod, he is entitled for partition against the defendants 1,2,3,4, 5 and the defendant No.8 as well as Maniklal (since dead) by his legal heirs defendants No.6 and 7 for division and apportionment of half of the suit property.
The defendant No.1 is the elder brother of defendant No.8 and has reared and looked after him. He has filed joint written statement on his behalf and on behalf of the defendant No.8 with common rights and interest in the instant suit Even otherwise, mere absence of formal order appointing guardian ad litem does not vitiate the decree if defendant No.8 was represented in the suit by his brother in absence of parents and, therefore, no prejudice is caused to his interest (Johari and others Vs. Mahila Droupati, AIR 1991 SC 340, relied upon) and while rejecting the third application, relying upon Order 22 CPC, the trial Court has found that no proceedings are pending of the nature as contemplated thereunder, therefore, the aforesaid application is not maintainable in the instant proceedings as the provisions of Order 22 rule 3, 4 and 8 CPC have no application to the proceedings of the execution of the decree or order. Moreover, the brother of defendant No.8 was already on record and protected his interest, therefore, the instant application filed by the applicant styling herself to be sister of the deceased, 3 M.P.No.5864/2018 Kaluram was held to be not maintainable that too at a distance of more than seven years after the preliminary decree has attained finality.
2. Shri Aniket Abhay Naik, taking exception to the impugned order has raised contentions, firstly; in absence of an order for appointment of next friend or guardian ad litem of the deceased Kaluram (defendant No.8) in terms of Order 32 rule 5 CPC, the impugned judgment and preliminary decree dated 07/05/2007 is null and void relying upon the judgment of the Hon'ble Supreme Court in the case of Ram Chandra Arya Vs. Man Singh and another, AIR 1968 SC 954, secondly; there is no prescription of time limit to challenge the same on its executability in law and the entire proceedings following the impugned judgment dated 07/05/2007 (supra) are vitiated by errors of law as illegal and since defendant No.1 having acted on his behalf and on behalf of defendant No.8 as well, such representation is in violation of Order 32 rule 4 first proviso of CPC. Hence, the trial Court has committed patent illegality rejecting the applications discussed above in the impugned order warranting interference under Article 227 of the Constitution of India.
3. Per contra, Shri Gandhi, learned counsel for the respondents has supported the order impugned with the following contentions:
(i) the trial Court did not commit any illegality or jurisdictional error warranting interference under Article 227 of the Constitution of India;
(ii) the preliminary decree for separation of shares and partition deed vide the judgment dated 07/05/2007 passed by the trial Court, was affirmed in F.A.No.411/2007 by this Court (supra), however, no objection whatsoever was raised before Courts at any stage of the proceedings. Now at a distance of time of more than seven years and that too at the stage of finalization of passing of the final decree for partition and separation of shares under Order 20 rule 18 read with section 54 CPC the application has rightly been held to be misconceived and of no 4 M.P.No.5864/2018 consequence particularly, in the teeth of the fact that the preliminary decree (supra) has attained finality;
(iii) the plaintiff with the plea of joint ownership of suit property and his late brother, Narayan Rathod vide registered sale deed dated 15/06/1966 (house and agricultural land) had filed the suit for partition against the sons, widow, widow of son late, Manikchand and grand daughter of Narayan Rathod, viz., defendants No.1 to 4 & 8, 5, 6 and (minor daughter of Manikchand) defendant No.7, respectively.
Undisputedly, the defendant No.8 had been looked after and brought up by his elder brother/defendant No.1 Dulichand who has acted and represented him as next friend or guardian ad litem as well safeguarding their interest which in no way was adverse to the defendant No.8. Defendant No.1 on behalf of defendant No.8 and on his behalf with common rights and interest filed written statement and contested the suit. Thereafter, the defendants have filed F.A.No.411/2007 which was dismissed on 07/03/2004 by this Court. There is no material on record to suggest that interest of defendant No.8 was jeopardized or any prejudice was caused to the defendant No.8 in any manner whatsoever. Under the circumstances, the mere absence of formal order of appointment of next friend or guardian ad litem of defendant No.8 shall not render the judgment dated 07/05/2007 (supra) as nullity. He relied upon order passed by this Court in the case of Raja Brti Vs. Rajnath reported in 1994(II) MPWN SN 115 & Full Bench decision of Punjab & Haryana High Court in the case of Amrik Singh and another Vs. Karnail Singh and others reported in AIR 1974 P & H 315]; and
(iv) defendant No.8, Kaluram passed away on 14/08/2018, and the present petitioner, Ahiliya Bai sister of Kaluram has filed the instant three applications on 04/01/2017. The trial Court has rightly held that the first application under section 47 CPC is not maintainable in the proceedings under 5 M.P.No.5864/2018 Order 20 rule 18 read with section 54 CPC as the same are not execution proceedings; the second application under Order 32 rule 5 CPC has also been rightly rejected for the reason that after death of Kaluram (defendant No.8), the question of appointment of next friend or guardian ad litem did not arise and the third application under Order 22 rule 4 CPC as Kaluram was represented by his elder brother, Dulichand (defendant No.1) who has looked after all along the defendant No.8 with common interest in the Court proceedings, therefore, at the stage of the proceedings for passing of the final decree, the preceding preliminary decree which remained unchallenged cannot be challenged. Even otherwise, such an application is rightly held to be barred by Order 22 rule 12 CPC.
4. Heard.
5. Order 32 CPC speaks of suits by a minor or a person of unsound mind. Rule 4 provides that any person who is of sound mind and has attained majority may act as next friend or as guardian ad litem in the suit provided the interest of such person is not adverse of a minor and in the case of next friend, he is not a defendant.
The legislative intendment appears to be to ensure protection and safeguard the interest of a person of unsound mind in the suit and in no way can be permitted to be compromised to his detriment or cause prejudice to his rights and interest. Therefore, to fulfill the aforesaid requirement of law, the Court appoints next friend or guardian ad litem of a person of unsound mind either in the case of plaintiff or the defendant as the case may be.
If the judgment is rendered in a suit where the interest of the person of unsound mind is not protected or any prejudice is caused to his rights and interest culminating into palpable illegality to his rights and interest, the same is liable to be declared as null and void.
6 M.P.No.5864/2018As has been held by the Hon'ble Supreme Court in the case of Ram Chandra Arya (supra) where the ex parte decree against the person of a unsound mind without appointment of next friend or guardian ad litem was held to be null and void.
6. Assuming there is a formal defect or irregularity in the proceedings for appointment of next friend or guardian ad litem, unless; it is shown to the satisfaction of the Court that interest of such person is seriously prejudiced or deprived of some good and valid defence, it is not open to declare the judgment and decree bad in law [Ram Rekha Singh Vs. Ganga Prasad Mukharaddhwaj, AIR 1926 All 545 (FB), referred to].
7. The Full Bench of the Punjab and Haryana High Court in Amrik Singh and another (supra), while interpreting the provisions of Order 32 rule 4 CPC has observed as under:
"13.......The object of Order 32 is to see that no decrees are passed against minors where they are not effectively represented. I have deliberately used the words 'effectively represented' in contradistinction to the 'representation' contemplated by Order 32, Rule 3. If a minor is represented by a guardian ad litem and the interests of the other major defendants are identical with him and those defendants are effectively prosecuting the litigation it can hardly be said that a minor is not effectively represented. Too much insistence on technical provisions of a procedural law can at times lead to absurd results and cause injustice to the parties. It is only where a Court comes to the conclusion that the minor was not effectively represented and thus he was in fact not a party to the proceedings that the result envisaged by the learned Judges would necessarily follow. But where the minor is effectively represented, though technically not in line with the provisions of Order 32, Rule 3, the aid result will necessarily not follow. "
8. The requirement in law for application of procedural law in trial is to ensuring substantive justice between the parties.
The concept and interpretation of CPC has been lucidly explained by the Hon'ble Supreme Court in the case of Sangram Singh Vs. Election Tribunal Kotah and another, AIR 1955 SC
425. It is apt to quote paragraphs 16 and 17:
"16. Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal 7 M.P.No.5864/2018 enactment for punishment and penalties; not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should therefore be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.
17. Next, there must be over present to the mind that fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably, possible, in the light of that principle."
Regard being had to the concept and intendment underlying Order 32 CPC, the fulfillment of requirement of rule 4 thereof is to be understood on facts of each case ensuring no prejudice is caused to the person of unsound mind detrimental to his rights and interest in the lis either at the hands of the person with adverse interest or the judgment rendered in ignorance against him uncontested.
9. The instant suit for partition and possession is between the plaintiff who was real brother of Narayan Rathod. The original plaintiff had filed the suit against the sons, wife, daughter-in-law of late son and minor grand daughter of late Narayan Rathod with the claim of half share in the suit property jointly purchased by him and late Narayan Rathod. Admittedly, as well reflected from paragraph 3 of the judgment dated 07/05/2007 (supra), the defendant No.1 all along looked after the defendant No.8 and filed the written statement on behalf of defendant No.8 and on his behalf protecting the common interest. He contested the suit with the plea that the plaintiff has no right to the suit property or claim partition. It was pleaded that the suit property (house and agricultural land) though jointly purchased but during the life time of late Narayan Rathod, partition had taken place between the plaintiff, Sitraram and late Narayan Rathod in the year 1971. The 8 M.P.No.5864/2018 suit property since has fallen to the share of late Narayan Rathod and after his death, by way of natural succession fallen to the share of the defendants who are in possession having succeeded to the rights, interest and tittle to the suit property. It was also denied that the plaintiff at any point of time was in possession of the suit property. The suit property has been developed by the defendants by spending huge money, etc., As such, by no stretch of imagination, any prejudice to the rights and interest of defendant No.8 can be inferred with or understood or adverse to the interest of defendant No.1.
Upon reading of the pleadings and the judgment rendered on 07/05/2007 (supra), this Court is of the view that no prejudice was caused to the interest of defendant No.8 since the defendant No.1 has acted on behalf of the defendant No.8 and on his behalf effectively with the common rights and interest. The preliminary decree for partition attained finality with the judgment passed in F.A.No.411/2007 on 07/03/2014 by this Court . There was no further challenge to the same. Under the circumstances, mere absence of formal order of appointment of next friend or guardian ad litem by the Court shall not render the judgment and decree as null and void. As discussed above, the judgment rendered by the Hon'ble Supreme Court in the case of Ram Chandra Arya (supra) is clearly distinguishable on facts and is of no assistance to the petitioner.
Defendant No.8, Kaluram died on 14/08./2018 during pendency of the proceedings. Now at the stage of proceedings under Order 20 rule 18 read with section 54 CPC for separation of shares under the partition deed, the application filed by Ahilya Bani styling herself to be sister of Kaluram and seeking initiation of review proceedings under section 47 CPC is rightly held to be misconceived and misdirected, as the said provision is referable to the execution proceedings. Likewise, the question of appointment of next friend or guardian ad litem under Order 32 rule 5 CPC is equally misconceived. The application under Order 22 rule 4 CPC is also rightly held to be of no consequence in the teeth of the fact that defendant No.l - the real brother; a Class I heir looked after the defendant No.8 all along has filed the written statement on behalf of the defendant No.8 and also on 9 M.P.No.5864/2018 his behalf having effectively represented the defendant No.8 with common interest as well as contested the suit.
10. For the detailed discussion, in the opinion of this Court, there is no illegality or jurisdictional error warranting interference under Article 227 of the Constitution of India.
Miscellaneous Petition sans merit and is hereby dismissed.
(Rohit Arya)
Judge
b/- 27-02-2019
Digitally signed by M V
R BALAJI SARMA
Date: 2019.02.28
16:14:24 +05'30'