Rakesh Tiwari, J. - (1.) HEARD counsel for the parties and perused the record. Suit No. 6 of 1999 was filed by Shiv Kumar Lilariya before the Judge Small Causes Court, Gorakhpur for recovery of arrears of rent and eviction of the tenants from the shop in dispute. An application paper No. 6 Ga-2 was filed by the plaintiff for appointment of guardian of the petitioners on 8.2.1999 on this date of institution of suit itself as they were minors. The application was allowed on the same date and the natural mother of the petitioners Smt. Shobhawati Devi who was also a party in the suit with other sons and daughter as joint tenants was appointed as guardian of the defendant first set- petitioners. Thereafter, written statement was filed by Smt. Shobhawati Devi and others on 7.5.1999. The case was not pursued by the tenants thereafter and was decreed ex parte on 23.5.2003 by the Judge Small Causes Court/Civil Judge (Senior Division), Gorakhpur. The plaintiffs then filed Execution Case No. 3 of 2004 for execution of the ex parte decree dated 23.5.2003.
(2.) THE case set up by the petitioners is that when they came to know about the ex parte decree an application alongwith an affidavit was filed in aforesaid Suit No. 6 of 1999 under Order 9 Rule 13 read with Section 151 of C.P.C. for setting aside the ex parte decree dated 23.5.2003 which was numbered as application No. 3 of 2006. An objection was filed in the said Misc. Application No. 3 of 2006 by the plaintiff-respondent 1st set alongwith an affidavit which was replied by the petitioners. The Judge Small Causes Court, Gorakhpur vide his order dated 16.7.2008 dismissed the application filed by the petitioners for setting aside the ex parte decree. Aggrieved, Revision No. 13 of 2008, Anant Lal and others v. Shiv Kumar Lilariya and others, was filed by the petitioners before the Additional District Judge, Gorakhpur, which was also dismissed vide judgment and order dated 7.11.2008. The orders passed by the Court below have been challenged on the ground that the petitioners were minors at the time of institution of the suit and the procedure for appointment of guardian provided under Order 32 Rule 3 of C.P.C. was not followed. According to the petitioners, the application for appointment of the guardian was filed alongwith the suit by the plaintiffs and was allowed by the Court below appointing mother of the petitioners as guardian on the date of institution of the suit itself without issuance of any notice to the petitioners who though minors but above 12 years of age and to their mother defendant Smt. Shobhawati Devi before appointing her as guardian of the petitioners and as such the ex parte decree passed by the Court below is in violation of principle of natural justice, null and void to the extent in so far as the petitioners are concerned.
(3.) ONE of the grounds taken by the petitioners is that Smt. Shobhawati Devi is a 'Pardanasin' lady and was not in a position to protect her interest as well as of her minor children i.e. the petitioners; that she had left Pairvi of the case in these circumstances, due to which the right of the petitioners is affected in the proceedings. Learned counsel for the petitioners has submitted that the petitioners were minors above 12 years of age, hence notice was required to be issued to them and other probable guardians in accordance with the provisions contained in Order 32 of Rule 3 of C.P.C. Order 32 Rule 3 of C.P.C. as amended reads thus: "3. Guardian for the suit to be appointed by Court for minor defendant- (1) 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. (2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. (3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. (4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, (upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian), to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule. (4A) The Court may, in any case, if it thinks fit, issue notice under sub- rule (4) to the minor also. (5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree. High Court Amendments (w.e.f. 1st June, 1957 vide Notification No. 43 Vlld-29 Order XXXII Rule 3- (a) in sub-rule (3), at the end, delete the full stop and insert the following words, namely- "and shall also contain the names and addresses of all probable guardians including any guardian of the minor appointed or declared by an authority competent in that behalf, or the father or the other natural guardian of the minor, or where there is no father or other natural guardian the person in whose care the minor is" (b) for sub-rule (4), substitute the following sub-rule, namely- "(4) The Court shall cause notice of such application to be served upon the minor as also upon all the probable guardians named in the application and such other persons as it may deem fit calling upon them to file objections, if any, to the appointment, etc. the proposed or any other probable guardian of the minor. In case any person himself desires to be appointed guardian of the minor instead of the proposed guardian, he shall furnish an affidavit verifying the fact he has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. The Court shall after hearing the objections, if any, and consisting the respective claims of all persons desirous of being appointed guardian including the proposed guardian, appoint such person as guardian of the minor as it * may deem fit." (c) in sub-rule (4) insert the following proviso, namely- "Provided that if the minor is under twelve years of age no such notice shall be issued to him." ;