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CRA/1251/2002 2/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
REVISION APPLICATION No. 1251 of 2002
=========================================================
DHARMIT
@ PAVAN R.SHAH(DECD.) (THRO.NATURAL LEGAL HEIR) - Applicant(s)
Versus
SUJAL
FINANCE & 3 - Opponent(s)
=========================================================
Appearance
:
MR
PV HATHI FOR MS KHYATI P HATHI
for
Applicant(s) : 1,
NOTICE SERVED BY DS for Opponent(s) : 1,
MR
MC SHAH for Opponent(s) : 2 -
4.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 07/10/2010
ORAL
ORDER
1. The
challenge in this revision application, filed under Section 115 of
the Code of Civil Procedure, is the order dated 15.02.2000 passed by
the learned 3rd Joint Civil Judge (S.D.), Surendranagar
Special Civil Suit No.53 of 1999 by which, the application to
withdraw the suit filed by the next friend of the minor came to be
allowed.
2. Mr.P.V.
Hathi, learned counsel appearing for the petitioner/original
plaintiff, submits that in view of the specific provision of Order
23, Order 32 and Rule 7 of the Code of Civil Procedure, without there
being any separate application for leave under Sub-Rule(1) of Rule 7
of order 32 preferred by the next friend and permission was granted
by the Court below, no compromise could have been entered into much
less granted by the Court. In the facts of the case, no such
application for leave under Sub-Rule(1) of Rule 7 of Order 32 of the
Code was preferred accompanied by an affidavit of the next friend or
the guardian for the suit
and, therefore, order impugned
requires to be quashed and set aside.
The learned advocate has
placed reliance on the decision in case of Birbhan V/s. Harmukh Rai
reported in AIR (39) 1952 Allahabad 240 (F.B.) wherein, it is held
that the omission by a next friend of a minor to obtain leave of the
Court as required by Sub-Rule(1) of Rule 7 of Order 32 to enter into
an agreement to refer the case to the arbitration was held to be bad.
Further, the decision in case of Jadumani Naik and others V/s.
Jyostna Naik and others reported in AIR 1986 Orissa 28 was relied on
for the same proposition and, in para 3 of the above judgment, the
Court has held that it is imperative that Rule 7 of Order 32 should
be strictly complied with and non compliance of the mandatory
provision would entitle the minor to avoid the compromise if he so
chooses.
3. The above facts remained
undisputed.
4. Having
heard learned counsel for the petitioner/original plaintiff, Order 23
of the Code of Civil Procedure provide for withdrawal and
adjustment of the suit. While Order 32 pertains
to suits by or against minor and persons of
unsound mind and Rule 7 of the above Order reads as under:-
7.
Agreement or compromise by next friend or guardian for the
suit:-
(1) No next friend or
guardian for the suit shall, without the leave of the Court,
expressly recorded in the proceedings, enter into any agreement or
compromise on behalf of a minor with reference to the suit in which
he acts as next friend or guardian.
[1-A) An application for
leave under sub-rule(1) shall be accompanied by an affidavit of the
next friend or the guardian for the suit, as the case may be, and
also, if the minor is represented by a pleader, by the certificate of
the pleader, to the effect that the agreement or compromise proposed
is, in his opinion, for the benefit of the minor:
Provided that the opinion
so expressed, whether in the affidavit or in the certificate shall
not preclude the Court from examining whether the agreement or
compromise proposed is for the benefit of the minor.]
(2) Any such agreement or
compromise entered into without the leave of the Court so recorded
shall be voidable against all parties other than the minor.
The
above Rule not only casts duty
upon the next friend to seek
leave for preferring an application
accompanied by an affidavit but it further obligates the Court to
examine whether an agreement of compromise proposed is for the
benefit of the minor or not.
5. On perusal of the order,
as impugned in this revision application, no application accompanied
by an affidavit was preferred as required under Order 32 Rule 7 and
no satisfaction was expressed by the Court below about agreement or
compromise proposed or request was for the benefit of the minor and,
therefore, the order is contrary and the same deserves to be quashed
and set aside. The above two decisions (Supra) relied on by learned
counsel Mr.Hathi are squarely applicable in the facts of this case
and, therefore, also the order impugned deserves to be quashed and
set aside and accordingly, order impugned is quashed and set aside.
6. In view of the above, the
trial court is directed to proceed with the suit in accordance with
law. Rule is made absolute.
(ANANT
S. DAVE, J.)
Hitesh
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