Orissa High Court
Trilochan Das Adhikari And Anr. vs Simanchal Rath And Ors. on 1 September, 1994
Equivalent citations: 1994(II)OLR602, 1995 A I H C 3287, (1994) 2 ORISSA LR 602
JUDGMENT R.K. Patra, J.
1. This is an appeal by defendant Nos. 1 and 9 challenging the judgment of the learned District Judge remitting the suit to the trial Court for fresh disposal.
2. Respondent No. 1 filed T. S. No. 38 of 1987 in the Court of Subordinate Judge, Aska praying for declaration that Sri Madan Mohan Swamy Bije (defendant No 9 and the present appellant No. 2) is a Hindu deity installed in its temple and the same is neither a Math nor the defendant No. 1 (present appellant No. 1) is its Mahanta and the decree obtained by him (defendant No. 1) declaring him as the Mahanta in T.S. No. 83 of 1981 in the Court of Subordinate Judge, Aska is illegal and without jurisdiction.
3. Plaintiff's case is that his common ancestor Jogi Rath was the founder and had installed Sri Madan Mohan Swamy Bije (defendant No. 9) in a temple built for the purpose at Malabhanja. It is a Hindu temple. The plaintiff and the Rath family of the said village are the hereditary Marfatdars and Sevaks. Since the creation of the temple, the members of the Rath family have been looking after all the affairs of the institution on hereditary basis. The deity has Act 12.48 decimals of land in the village, the income of which is spent for Bhog and festivals of the deity. It is his allegation that defendant No. 1 a complete stranger manipulated and got himself appointed as paid manager by the Commissioner of Endowments and is about to grab the property of the endowment to the detriment of the institution. He (defendant No- 1) has also got an ex parte decree in T. S. No. 83 of 1981 declaring himself as the Mahanta of the institution by suppressing summons. The appellants contested the suit by filing written statement to the effect that the plaintiff was an imposter. It was also contended inter alia that the plaintiff had no right to contest the validity of the decree in T.S. No. 83 of 1981.
4. The learned trial Court took on one of the six issues as the preliminary issue and decided against the plaintiff dismissing the suit, the said issue being whether the judgment and decree passed in T. S. No. 83 of 1981 of the Subordinate Judge, Aska is valid and within jurisdiction. Being aggrieved by the said order, the plaintiff preferred appeal and the learned District Judge held that the suit should not have been disposed of on preliminary issue. He further noticed that the deity (defendant No. 9) in the suit whose interest was primarily involved had not been made to appear through any guardian to represent his cases contrary to the provisions contained in Order 32, Rules 3 and 11 of CPC. He accordingly, set aside the order of the trial Court and remitted the suit for fresh disposal after complying the provisions of Order 32 Rule 3, CPC.
Order 32, Rule 3, CPC provides that where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. The rationale behind the rule is that the interest of the minor has to be protected which can be dons if he is properly represented in the suit. It is a mandatory provision and the Court is bound to appoint a guardian for a minor defendant and such guardian should be fit and proper person to represent the interest of the minor. Defendant No. 9 (Sri Madan Mohan Swamy Bije) is a deity who is a perpetual minor. Admittedly, the trial Court had not appointed any one to represent the deity in the suit. A minor cannot be taken to be a party to the suit unless he is represented therein by a duly qualified guardian. In Ramachandar Singh v. B. Gopi Krishna Dass, AIR 1957 Patna 260, it has been held that where a minor is not represented, the consequence would be that there is no proper party to the suit in the eye of law notwithstanding that his name appears on the record and he must be regarded in law to be wholly unrepresented and consequently the jurisdiction of the Court to proceed against such a minor would be ousted and the Court will have no jurisdiction to render any judgment or pass any order against such a minor.
In Rama Chandra Arya v. Man Singh, AIR 1968 SC 954 the Supreme Court has held that a decree against lunatic without appointment of guardian is a nullity and has to be treated as non est.
5. In view of the aforesaid legal position, as the deity- defendant No. 9 was not represented in the suit by a guardian and the trial Court having failed to discharge its duty in appointing a guardian for him, the learned District Judge has not committed any wrong in remitting the matter to the trial Court for disposal of the entire suit in accordance with law after complying with the provisions of Order 32, Rule 3, CPC.
6. In the result, I do not find any merit in this appeal which is accordingly dismissed. No costs.