IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.10..2009
CORAM:
THE HONOURABLE MR. JUSTICE R.SUDHAKAR
C.R.P.(PD) No.3045 of 2009
and
M.P.No.1 of 2009
.......
Muthubava Kallibullah ...Petitioner
Vs.
1.Eswari
2.Ravichandramoorthi
3.Minor Ramyabarathi (minor)
rep. By her father and
natural guardian
Ravichandramoorthi ... Respondents
Prayer: Petition filed under Article 227 of the Constitution of India against the order dated 16.7.2009 in I.A. No. 31 of 2007 in I.A.No. 14 of 2007 in O.S.No. 9 of 2007 on the file of the Additional District Court/ Fast Track Court No.II, Gobichettipalayam.
For Petitioner : Mr. V. Srikanth
For respondents : Mr. Thiyagarajan
Sr. Counsel
for
Mr. S. Rameshkumar
O R D E R
This civil revision petition is filed by the plaintiff against the order dated 16.7.2009 in I.A. No. 31 of 2007 in I.A.No. 14 of 2007 in O.S.No. 9 of 2007 on the file of the Additional District Court/ Fast Track Court No.II, Gobichettipalayam.
2. The Plaintiff is the revision petitioner. The suit in O.S.No. 9 of 2007 has been filed for declaration and specific performance. The 4th defendant is the minor and daughter of defendants 1 and 5. To represent the minor, I.A.No. 14 of 2007 was filed by the revision petition/ plaintiff to appoint the father/first defendant as guardian and next friend of the minor child. Pending the application, the 5th defendant filed I.A.No. 31 of 2007 to implead herself as a party/respondent in I.A.No. 14 of 2007. After contest, I.A.No. 31 of 2007 was allowed and the mother Eswari was impleaded as party respondent in I.A.No. 14 of 2007. While passing such an order, the Court below has made certain observations with regard to the plea made by the mother that she alone is the proper person to represent the minor daughter in view of the certain proceedings referred to in the affidavit filed in support of the I.A.No. 31 of 2007. This observation, according to the learned counsel for the revision petitioner/plaintiff will affect the out come of the I.A.No. 14 of 2007 and the suit as well.
3. According to the learned counsel for the revision petitioner/ plaintiff, the first defendant/ husband and the 5th defendant/ wife have obtained a collusive decree to defeat the claim of the revision petitioner/ plaintiff. Further, the father of the minor alone should be appointed as guardian and next friend. The Court below exceeded its jurisdiction in making certain observations with regard to the claim of the mother instead of allowing the application simplicitor. Therefore, he sought the interference of this Court to the extent that the observation of the Court below in I.A.No. 31 of 2007 touching upon the claim of the mother that she is to be appointed as guardian of the minor child as unwarranted and would work against the stand taken by the revision petitioner/ plaintiff in the suit.
4. Mr. A. Thiagarajan, learned senior counsel appearing for the mother/first respondent herein submitted that there is no collusion whatsoever between the mother and the father. On the contrary, there are material to show that the husband and wife have fallen apart and the child is taken care of by the mother. He further submitted that the issue raised by her in the affidavit filed in support of the I.A.No. 31 of 2007 with regard to her claim that she is the guardian of the minor daughter will be once again agitated in I.A.No. 14 of 2007 and she would establish the same before the trial Court on merits.
5. There is no dispute insofar as the order passed in I.A.No. 31 of 2007 impleading the mother as party respondent in I.A.No. 14 of 2007. The only grievance as rightly pointed out by the learned counsel for the revision petitioner/plaintiff is that the Court below exceeded its jurisdiction in making some observations touching upon the claim of the mother to be appointed as the guardian of the minor daughter and that is not the scope of I.A.No. 31 of 2007. It has to be decided in I.A.No. 14 of 2007.
6. The above said contention of the revision petitioner is justified as the Court is not called upon to agitate the interest of the mother to represent the minor child when the application has been filed for impleading. The observations of the Court below with regard to the plea of the mother that she should be appointed as the Guardian of the minor child has to be decided in I.A.No. 14 of 2007 which is still on file. All the observations made in I.A.No. 31 of 2007 are to be eschewed. Therefore, the order in I.A.No. 31 of 2007 to the extent of impleading the mother as party respondent stand upheld and the observations which are not relevant for deciding I.A.No. 31 of 2007 stands deleted. The Court below is directed to dispose of the I.A.No. 14 of 2007 as expeditiously as possible on merits and in accordance with law. This civil revision petition is allowed to the extent indicated above. Consequently, MP No. 1 of 2009 is closed. No costs.
08.10.2009
ra
Index: No
Internet: Yes
To
The Additional District Court/
Fast Track Court No.II,
Gobichettipalayam.
R. SUDHAKAR,J.,
CRP(PD) No. 3045/2009
Dt. 8.10.2009