y~i HI6H COURT OF CHHATTISGARH AT BILASPU^ W.P. No.2587 OF 2005 ^- PETITIONER (Defendant no.3) Vs RESPONDENTS Plaintiff Defendants Syed Mohammed Yaseen, son of Mohibbul Hasan, aged 50 years, Caste-Musalmaan, resident of Pathanpara, Kharsiya, Tehsil- Kharsiya, District Raigarh (C.S.). 1. Munshi Ram Saluja, son of Nanak Chand Saluja, aged 72 years, resident of Sunar Para, Raigarh, Tehsil <& District Raigarh (C.6.) 2. Lalaram Chandra, son of Kanhaiya Chandra (dead) a. Jal Bai, widow of Late Lalaram, aged 60 years. b. Durpati Bai, widow of Late Lalaram, aged 45 years. c. Santosh Kumar, son of Late Lalaram, aged 25 years. d. Iswari Bai, d/o Late Lalaram, aged 21 years e. Tej Kumar, son of Late Lalaram, aged 15 years f. Ram Bai, d/o Late Lalaram, aged 16 years. 9. Rameshwar, son of Late Lalaram, aged 10 years No.2 (e to f) through guardian ad-litem Court Reader, District Judge, Raigarh (C6) 3. State of Chhattisgarh, Through the Collector, Raigarh (C6). Present; Mr. M.A. Latif Rehman, Advocate Mr. Awadh Tripathi, Advocate Mr. Bhaskar Pyasi, Panel Lawyer For the petitioner. For respondent No.l. For respondent No.3, OR C» E R (Passed on 27th March, 2008) Dhirendra Mishra. J 1. By this petition under Article 226/227 of the Constitution of India the petitioner has impugned the order dated 30.3.2005 (Annexure P-1) whereby learned 2nd Additional District Judge, Raigarh has rejected the application of the petitioner/ defendant No.3 filed under Order 32 Rules 11 <& 12 read with vw<^ ^;^"" .^.^ Page 2 of 4 /fe Section 151 of the Code of Civil Procedure, 1908 (for short 'Code') for issuance of notice to respondent No.2 (e to f) /defendant No.l (e to f). 2. From perusal of the impugned order it appears that respondent No.l-Munshi Ram Saluja has filed a suit against Lalaram Chandra, petitioner herein and the State of Chhattisgarh. After the death of defendant Lalaram Chandra, his legal heirs were substituted as defendants in his place. At the time of substitution, defendants namely Tejkumar, Rambai and Rameshwar were minors, therefore, the court below has appointed Court Reader of the District Court as their guardian ad-litejp. The petitioner herein filed the application (Annexure P-2) and submitted that the plaintiff showing the age of the defendants Tejkumar, Rambai and Rameshwar as 15 years, 16 years <& 10 years respectivety has substituted them as legal heirs of defendant Lalaram. However, during the pendency of the suit they have attained majority and therefore, their representation through the appointed guardian is not in accordance with law and the above defendants should be issued notices. However, the above application has been rejected by the court below vide impugned order with the observations that there is no provision in Order 32 of the Code that if minor defendant attains majority during pendency of the suit the guardian appointed on his behalf should be removed and notice should be issued to the defendant. Referring to Order 32 Rule 3 (5) it has been observed that a person appointed under sub-rule (1) to be guardian for the suit for a minor shall continue as such through all proceedings arising out of the suit unless his appointment is terminated by retirement, removal or death. 3. In the matter of Bajranlal Vs. Umesh Kumar and another reported in 2001 (2) Vidhi Bhasvar 126 the minor plaintiff attained majority during pendency of the suit, considering the /y" ^'r:"'^ '"•• J &. ir ^^St;^"&, ^ --^.;.-^^ '& ^ 's YWy. ^s^^ Page 3 of 4 express provisions of Order 32 Rule 12 of the Code it has been held that the plaintiff after attaining the age of majority is required to take certain positive steps and the litigation cannot be permitted to exist in a vacuum. He cannot take the plea that he would continue to be represented by his guardian and accordingly the plaintiff was directed to take positive steps as contemplated under Order 32 Rule 12 of the Code within the specified period. 4. In the matter of Paritosh Kumar Sanguly Vs. Smt. Sitala Bala Ghosh reported in AIR 1985 CALCUTTA 164 repelling the contention of the petitioner/judgment-debtor that the . petitioner/judgment-debtor had attained the majority in the year 1975, therefore, he could not be represented by his mother as guardian and the subsequent proceeding in the suit resulting in the decree is not binding on him, as there could not be any proper representation on whom no summons or notice of the suit was issued and who was not given any opportunity of appearing and contesting the suit,it has been held that the legal position that follow from the provision of sub-rule (5) of Rule 3 of Order 32 of the Code has been clearly set-out in the decision of Division Bench of Patna High Court reported in AIR 1939 Patna 601 between Ratan Prosad Vs. Bridhi Chand and AIR 1926 Calcutta 1053 between Drupad Chandra Vs. Bindumoyi Dasi. It was the duty of the defendant after attainment of the majority to appear in the suit and to apply for discharge of guardian to enable him to defend the suit personally. As he failed to do so and allowed the suit to proceed as though he was still a minor without brining to the Court's notice the fact of his attaining majority, the decree passed against him is binding on him and it cannot be challenged as a nullity. 5. In the instant case, legal heirs of original deceased defendant Lalaram Chandra i.e. two widows namely Jalbai <& Durpati Bai, s^/ Page 4 of 4 •:/' son Santosh Kumar and daughter Ishwari Bai have been proceeded ex-parte. Minor defendants namely Tejkumar, Rambai & Rameshwar are represented through the guardian ad titem appointed by the court. Guardian, who has been appointed by the court, has not been discharged by the Court and thus, the said defendants are still represented. They have not chosen to move any application for discharge of their guardian on the ground that they have attain^d the majority and therefore, in view of sub-rule (5) of Rule 3 of Order 32 of the Code they are still duly represented by the guardian appointed by the court and therefore; there was no necessity to issue notice to the said defendants on the ground that they have attained the majority. 6. In view of the above, I am of the considered opinion that there is no illegality, infirmity or jurisdictional error committed by the court below in passing the impugned order which warrants interference in exercise of extraordinary writ jurisdiction under Article 226/227 of the Constitution of India for quashing the impugned order dated 30.3.2005 of Annexure P-1 whereby the application of Annexure P-2 filed by the petitioner herein has been rejected. 7. In the result, the petition has no merit, the same deserves to be dismissed and accordingly, it is hereby dismissed. 8. Consequently, stay order dated 27.6.2005 also stands vacated. 9. No order as to costs, Sd/- Dhirendra Mishra Judge Roshan/-