SADHU SINGH AND ORS. Vs. ASA SINGH
LAWS(P&H)-1950-3-4
HIGH COURT OF PUNJAB AND HARYANA
Decided on March 22,1950

Sadhu Singh And Ors. Appellant
VERSUS
Asa Singh Respondents

JUDGEMENT

Campbelpuri, J. - (1.) THE essential facts giving rise to the question of law involved in this case may shortly be stated as follows.
(2.) ONE Atma Singh a Jat of village Karala sold some agricultural land in favour of Asa Singh by registered deed dated 6 -3 -1999 and this sale was challenged by Sadhu Singh and Babu Singh minors sons of Atma Singh vendor through their next friend Babu Singh son of Mehma Singh Jat of the same village by a suit for declaration that the land in dispute was ancestral and the sale was effected without any consideration and valid necessity and was thus ineffective against the reversionary rights of the Plaintiffs eons of the alienor. This suit was resisted by the vendee and the trial Court held that the land was proved to be ancestral but the sale was justified by consideration and legal necessity with the result that the suit was dismissed on 26 -11 -2004. It appears that Babu Singh who acted as a next friend of the minors Sadhu Singh and Babu Singh did not choose to file any appeal and submitted to the decision arrived at by the trial Court but one Bishan Singh preferred an appeal against the decree acting as the next friend of the minor Plaintiffs on 44 -2005. The Respondent's counsel in the District Court raised the preliminary objection that the appeal was incompetent because Bishan Singh had no right to prefer the appeal until and unless Babu Singh was removed under the provisions of Order 32, Rule 9, Code of Civil Procedure. Reliance was placed on Mt. Daulat Bai v. Shankat Rai, A.I.R.1931 Lah. 635 :, 133 I.C. 445 and the learned District Judge on the strength of the dictum laid down in this authority came to the conclusion that the appeal was incompetent inasmuch as no application was made for the removal of the previous next friend Babu Singh and there was no evidence that he did not perform his duty properly with the result that the appeal was dismissed on this short ground. Bishan Singh moved this Court on the revisional side through Mr. Kartar Singh advocate and it was contended that in the case of the next friend it was not necessary that the previous next friend should have been removed by any regular application. The argument advanced by the Petitioner's counsel was that there is a difference between a guardian ad litem and next friend and that whereas a guardian ad litem is constituted by the order of the Court, a next friend is automatically appointed and as such the appeal was competent although no application in the District Court was made for the removal of the previous next friend Babu Singh. It was further contended that the first appellate Court at any rate should have stayed the appeal proceedings and called upon the minors to proceed with the appeal. Reliance was placed on Amarchand v. Nemchand, A.I.R.1942 All. 150 :, I.L.R. (1942) All. 144; Lachhman Singh v. Mt. Chattad Kaur, A.I.R.1927 Lah 663 :, 103 I.C. 767; Ali Ahmad v. Said Mian, A.I.R.1924 Lah. 188 :, 4 Lah. 390 and two Patiala rulings reported in 5 Patiala 353 and 6 Patiala 331. Reference was also made to Order 32, Rule 4, Code of Civil Procedure, which reads as follows: Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit: Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a Defendant, or in the case of a guardian for the suit, a Plaintiff. It may be observed at the very outset that the procedure laid down under Order 32 for filing suits on behalf of the minors is not confined only to Rule 4 but it extends to other rules, namely, 5 to 13. Rule 4 deals with the institution of the suits and it is laid down that any person can act as a next friend but it does not mean that when he is appointed or chooses to act as a next friend, any other man can intervene without getting the previous one removed. Accordingly it is laid down in Rule 5 of Order 32 that every application to the Court on behalf of the minor shall be made by his next friend so appointed. Rule 8 deals with retirement of the next friend and Rule 9 with the removal of the next friend. I do not propose to reproduce all these rules but what is to be noted is that the removal or the retirement of the next friend as ordained by Rules 8 and 9 clearly indicate that the next friend once appointed debars any other person to step in before the first one is removed or is made to retire. The underlying principle is very simple because if all and sundry are permitted to act on behalf of the minor it would lead to absurdity and more than one persons would act on behalf of the minor without informing the one who was appointed at the time of the institution of the suit. The authorities relied upon by Mr. Kartar Singh also relate to Rules 1 and 4, Order 32 and as such cover cases in which any one acted as next friend at the time of institution of suit.
(3.) IN Amarchand v. Nemchand, A.I.R 1942 All. 150 :, I.L.R. (1942) All. 144 the difference between next friend and guardian ad litem, no doubt, has been explained but it clearly deals with the institution of the suit under Order 32, Rules 1 and 4. In this very authority it was further held that: where the Court finds a person making an application on behalf of the minor, which if granted will result in his becoming a next friend, the Court will exercise its inherent jurisdiction to prevent that person from repudiating the position of a next friend at any time after he has taken upon himself to make the application. If it were otherwise, it would amount to a form of approbation and reprobation. This dictum rather lays down a rule that when once a suit is lodged by one next friend, the Court has power to prevent him from repudiating his position. In Lachhman Singh v. Mt. Chattar Kaur, A.I.R 1927 Lah. 663 :, 103 I.C. 767 one Sant Singh had acted as a next friend of one Atma Singh but Sant Singh in the course of the suit proceedings died and the appeal was filed in his name which error was detected and it was held that an appeal by minor without a next friend was not a nullity and the case was remanded to the District Judge for giving an opportunity to the party for the appointment of another next friend. In Ali Ahmad v. Said Mian, A.I.R.1924 Lah. 188 : 4 Lah. 390 similarly Plaintiff minor sued without a next friend and it was held that the plaint should not have been rejected but proceedings should have been suspended. All these cases are clearly distinguishable and have no direct bearing on the facts of this case. The simple question involved in the present case is as to whether Bishan Singh could prefer an appeal without referring to Babu Singh who acted as next fried in the suit proceedings and without making an application in the Court for the removal of the previous next friend or at any rate without obtaining permission of the Court for filing this appeal. Bishan Singh admittedly did not make any application in the District Court and Mr. Kartar Singh who appears to have become conscious of this material defect has now made an application in this Court for the removal of Babu Singh and for granting permission to Bishan Singh to proceed with the revision petition. This application, however, was not made when the revision petition was filed but several days after and no permission was obtained. Be that as it may, no application was made in the District Court and the real question is whether an appeal in the District Court was competent. This question is answered in Mt. Daulat Bai v. Shankat Rai, A.I.R 1931 Lah. 635 :, 133 I.C. 445 in all its implications and it was held that where a next friend of the minors has once been appointed such appointment continue for the whole of the lis or until it is revoked by the Court or until the next friend has been removed under Order 32, Rule 9 and the next friend is the only person who can prefer an appeal on behalf of the minors. Mr. Kartar Singh, however, tried to distinguish this authority and contended that this authority was based on Shambhoo v. Kanhaya, A.I.R 1922 All. 332 :, 44 All. 619 and Bhagalu v. Mt. Dharma : A.I.R 1924 All. 79 : 45 All. 623 which deal with guardian ad litem and the case of next friend stands on different footing as explained in Amarchand v. Namchand, A.I.R 1942 All. 150 :, I.L.R. (1942) All. 144. But as said above the difference explained in Amarchand v. Nemchand, A.I.R 1942 All. 150 :, I.L.R. (1942) All. 144, is to be observed at the time of the institution of the suit and not with the removal of next friend already appointed. Mr. Kartar Singh drew my attention to 5 Patiala 352 and 6 Patiala 331 also. Both of these authorities have recently been considered in Civil Appeal (R.I. No. 389 of 2006), (Amar Singh v. Kishan Singh) decided by a Division Bench of this Court and it was held that the principle laid down in these rulings is too wide. In both these Patiala case's the Appellant failed to appear in Court and it was held that the appeal should not have been dismissed in default but stayed and that regular application was not necessary for the removal of the next friend and the Court suo moto should have adjourned the case. This dictum did not find favour with the Judges who decided the Division Bench case: Amar Singh v. Kishan Singh mentioned above and it was held that an application for the removal of the next friend is necessary. Furthermore the facts of this case stand on a different footing because it is not a case of the failure of the next friend to appear and the dismissal of the suit for default of appearance but it is a case of another next friend acting on behalf of the minor without securing an order of removal of the previous next friend and the question of adjournment does not arise as urged on behalf of the Petitioner. The learned Counsel has ingeniously made an attempt to complicate the matter but the question for determination as stated above is simple one namely as to whether the appeal was competent when no application for the removal of the previous next friend was made. Mt. Daulat Bai v. Shankat Rai, A.I.R 1931 Lah. 635 :, 133 I.C. 445 is a clear authority on all fours and as contrary authority was cited at the bar. In the circumstances therefore I consider that there is no force in this petition, which is dismissed with costs.;


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