VIJAYKUMAR Vs. GENDALAL

JUDGEMENT

(1.) THIS is an application for leave to appeal as a pauper from a decision of the Civil Judge, First Class, Ujjain, decreeing the plaintiff -opponent Gendalal's claim for recovery of arrears of rent against the applicants and the non -applicant Bapulal.

(2.) THE plaintiff's claim in brief was that the applicants' uncle Bapulal and their mother Basantibai mortgaged with possession some property belonging to the joint family and subsequently took on rent one of the mortgaged houses, and that they were in default in the payment of rent. The applicants were defendants in the suit and were represented by Mr. Pagnis, a pleader, as guardian ad litem appointed by the trial Court. The application for leave to appeal as pauper on behalf of the minor defendants is not by Mr. Pagnis, guardian ad litem, but by one Shirish Kumar who claims to be a next friend of the minors. This application must be dismissed on the short ground that where in a suit a guardian ad litem for a minor defendant is once appointed, that appointment continues for the whole of the lis or until it is revoked by the Court and the guardian ad litem so appointed is the only person who can file an appeal or any application on behalf of the minor. In Ganesh Singh Vs. Govind : A.I.R. 1944 Nag 78 it has been held that there is a difference between a guardian ad Hum and a next friend, in that whereas a guardian ad litem is constituted by an order of the Court, a next friend automatically constitutes himself by taking steps in the suit, and that the only person who is competent to prefer an appeal on behalf of the minor defendant is the duly constituted guardian ad -litem of the minor. In a case where the guardian ad litem does not prefer an appeal but some person, claiming to be the next friend of the minor, desires to file an appeal, then the next friend must apply to the appellate Court for an order removing the guardian ad litem originally appointed and for his own appointment under Sec. 32, R. 11 and then present an appeal after his appointment as guardian ad litem. This course was not followed by Shirish Kumar, the person who has filed this appeal on behalf of the minors. It is said that in execution proceedings of the decree, the appointment of Mr. Pagnis as guardian ad litem was revoked. This revocation cannot make the appeal competent as admittedly the application for leave to appeal as a pauper was filed beyond time and while limitation was subsisting. Mr. Pagnis remained guardian ad litem of the minors, and Shirish Kumar did not apply to this Court for the revocation of Mr. Pagnis' appointment and for his own appointment as guardian ad litem.