CIVIL REVISION No.840 OF 2008 (Against the Order dated 29.4.2008 passed by the Sub Judge-I, Katihar, in Title Suit No.40 of 2000). ------------ RAHUL KUMAR AGRAWAL, SON OF LATE MAHESH KUMAR AGRAWAL, RESIDENT OF MOHALLA-MAHATMA GANDHI ROAD, P.O. KATIHAR, P.S. KATIHAR, DISTRICT-KATIHAR. ……………………………………….………DEFENDANT NO.2/PETITIONER. Versus 1. SRI RAJENDRA KUMAR AGRAWAL, SON OF LATE DURGA PRASAD AGRAWAL, RESIDENT OF MOHALLA-BARA BAZAR, P.O. KATIHAR, P.S. KATIHAR, DISTRICT-KATIHAR. …………………………………PLAINTIFF/OPPOSITE PARTY 1ST SET. 2. SMT. RENU DEVI AGRAWAL @ RENU AGRAWAL, WIFE OF LATE MAHESH KUMAR AGRAWAL. 3. SONU KUMAR AGRAWAL, MINOR SON OF LATE MAHESH KUMAR AGRAWAL THROUGH MOTHER GUARDIAN AND NEXT FRIEND. 4. RESHU KUMARI AGRAWAL, DAUGHTER OF LATE MAHESH KUMAR AGRAWAL. No.2 TO 4 RESIDENTS OF MOHALLA MAHATMA GANDHI ROAD, P.O. KATIHAR, P.S. KATIHAR, DISTRICT-KATIHAR. …..DEFENDANTS/OPPOSITE PARTIES 2ND SET-OPPOSITE PARTIES. ------------ For the Petitioner : M/s. M.N. Parbat, Sanjay Kumar Jha and Praveen Prabhakar, Advocates. For the Opposite Parties : M/s. Basant Kumar Choudhary, Senior Advocate, Arvind Kr.II, Rajendra Sah, Ajay Kumar Verma (for O.P. No.1)and Ramesh Kumar Agrawal (for O.P. Nos.2 to 4), Advocates. ------------ P R E S E N T THE HON'BLE MR. JUSTICE DR. RAVI RANJAN Dr. Ravi Ranjan, J. This Revision is directed against the order dated 2 29.4.2008 passed by the Sub Judge-I, Katihar, in Title Suit No.40 of 2000, whereby the application filed by the petitioner for allowing him to contest the suit, as he has now attained majority, has been rejected by the concerned court. 2. Title Suit No.40 of 2000 has been filed by the opposite party no.1 for declaration of title upon the suit property, mentioned in Schedule-A to the plaint, which the plaintiff has claimed to have acquired by two registered sale deeds of gift executed by his mother, Smt. Sita Devi Agrawal, in his favour. The opposite party no.2, alongwith her sons, the petitioner and opposite party no.3, as well as daughter-opposite party no.4, were impleaded as defendants. The sons and daughters were shown to be minors and subsequently, their guardian ad litem was appointed by the court. The mother, defendant- opposite party no.2, had appeared and filed written statement. Written statement had also been filed on behalf of the minors through the guardian ad litem. However, the petitioner filed a petition, as contained in Annexure-‘1’ to this Civil Revision, stating therein that now he has attained majority and as such he may be granted permission for contesting the suit. Subsequently, the plaintiff had also amended the plaint to that effect and now had shown the petitioner as major. An application was again filed by the 3 petitioner before the court below (contained in Annexure-‘3’ to this Civil Revision) stating therein that the written statement filed by the guardian ad litem on behalf of the minors was incomplete and not sufficient, therefore, the defendant no.2- petitioner be allowed to contest the suit and also to file correct written statement. It had also been stated that the guardian ad litem filed the written statement without proper inquiry and without following the guidance provided under Rule 185 of the Civil Court Rules. However, the trial court had rejected the prayer by order dated 29.4.2008 stating therein that the mother of the minor defendants had filed detailed written statement and had also examined witnesses. Since final argument had already been completed on behalf of the defendants, it would not be proper to allow the defendant-petitioner to file written statement afresh as the same would again re-open the trial. 3. I have heard the parties and perused the records. 4. It had been submitted on behalf of the petitioner that after attaining majority, the petitioner, on examination of the written statement, had found the same to be insufficient, therefore, it would be proper in the interest of justice to allow him to file a fresh written statement. That apart, learned counsel for the petitioner drew attention of this Court towards Rule 185 4 of the Civil Court Rules to impress upon that the guardian ad litem was required to make a communication with a natural guardian of the minors with regard to the subject matter of the suit and if no response was received then he was required to report the court concerned and apply for leave to go to the locality for necessary inquiry and submit a report before the court. It was submitted that none of the provisions, as contained in Rule 185 of the Civil Court Rules, having been followed by the guardian ad litem, the entire proceeding suffered from flaw and, thus, it made out a fit case wherein the petitioner should have been allowed to file a fresh written statement. In support of his submission, learned counsel for the petitioner placed reliance upon a Division Bench decision of this Court rendered in Vaidyanath Sahay Vs. Rambadan Singh and another, reported in AIR 1966 Patna 383. Learned counsel had specially placed reliance upon paragraph-10 of the aforesaid decision wherein the Court has made observation that it was not enough that a minor should be merely represented by a guardian rather he should be represented effectively and in a case where the interests of the minor were not guarded in a litigation by the court-appointed guardian as a prudent man ought to do, the minor, after attaining majority, could legitimately make a 5 grievance of that to avoid the consequence of the litigation decided against him during his minority. It had also been submitted on behalf of the petitioner that the defendant no.1 (mother) had not examined herself as a witness and out of eight witnesses produced on behalf of the plaintiff, only four witnesses had been cross examined. 5. Learned counsel appearing for the opposite party no.1 contended that a detailed written statement has been filed on behalf of the mother. Written statement filed on behalf of the defendant-petitioner by the court-appointed guardian would also show that the allegation made in the plaint had been refuted by him and in paragraph-19 of the written statement, it had been clearly stated that the defendants being minor members of the family under the guardianship of the defendant no.1, the aforesaid guardian (mother) could state the detailed story of acquisition as well as their legal right upon the suit properties and the circumstances which led to the acquisition of the same. The mother (defendant no.1) had filed detailed written statement and contested the suit also. Learned counsel submitted that the Title Suit was being heard finally for its disposal and at that point of time the prayer of the defendant-petitioner to allow him to contest the suit by filing fresh written statement would highly 6 prejudice the trial and was obviously a dilatory tactics which the defendant-petitioner was adopting in collusion with his mother. It was also submitted that seven defendant’s witnesses had already been examined on behalf of the mother. So far the technical objection raised on behalf of the petitioner, it was submitted that one would find the provision for appointment of guardian of a minor as contained in Order XXXII of the Code of Civil Procedure. However, the Rule 185 of the Civil Court Rules had been framed for guidance of the guardian ad litem for the purpose of removing difficulty which he might face in course of the proceeding. It was submitted that the same was enabling provision so that if some difficulty arose due to lack of response from the natural guardian of the minor or if in a suit there were major and minor defendants but there was no appearance on behalf of the other defendants, the guardian ad litem could proceed in a manner which had been prescribed in the aforesaid Rule. Therefore, it was submitted that the aforesaid provisions being directory, non compliance of the Rule could not vitiate the entire proceedings. Learned counsel further submitted that to take such stand, the defendant would have to establish that some prejudice has been caused to him due to non compliance of the aforesaid Rule. It had further been contended that the petitioner 7 had measurably failed to make out a case that any prejudice had been caused to him. That apart, he could not make any specific statement either in his petition filed before the court below or even in this Civil Revision as to what actually were the necessary or specific facts which could not be incorporated by the court-appointed guardian in the written statement. Learned counsel had placed reliance upon a decision of the Gauhati High Court rendered in Smt. Kalyani Ghose Vs. Dr. Bhabani Charan Banerjee and another, reported in 1983 Gauhati 65. In the aforesaid case, when the proceedings filed in an ejectment suit had reached the stage of final hearing, then the daughter had filed an application claiming that she had attained majority and asked for permission to file written statement. It had been held that the applicant, though stated that her mother did not properly contest the suit, but was unable to explain what shortfalls or omissions were made by her mother. The court found the allegations made by the applicant to be vague and ambiguous and, thus, refused to exercise powers under Section 115 of the Code of Civil Procedure. 6. On perusal of the records of the case, it appears that a petition was filed by the mother (defendant no.1) also on 18.11.2002 to remove the guardian ad litem and for stay of the 8 proceeding till the minors attain majority. This stand of not following the provisions of Rule 185 (4) of the Civil Court Rules was also taken by her in the aforesaid petition and, thus, a prayer was made that since the guardian ad litem has failed in his duty, he should be removed and proceeding should be stayed till minor defendants attain majority. The Trial Court by order dated 23.11.2002 rejected the prayer holding that the same is merely a dilatory tactics adopted by the defendant no.1. The matter was challenged in Civil Revision No.119 of 2003, however, the same had been dismissed by this Court by order dated 28.1.2003 holding that the whole object to file such petition was to stay the proceeding till the minors attained majority. 7. In the petition filed before the court below, the defendant-petitioner though had taken a stand that the guardian ad litem had not followed the guidance as prescribed in Rule 185 of the Civil Court Rules framed for that purpose, however, he could not establish as to what prejudice had been caused to him. Though, he had made a statement that the written statement was not proper or sufficient, however, there is no specific statement either in the petition filed before the court below or even before this Court as to what were the facts which ought to have been incorporated in the written statement which had not been 9 included therein. Simply a bald statement has been made that written statement is not sufficient which, in my opinion, is of no help to the petitioner. The mother of the minor was also a party in the suit and had filed detailed written statement and contested the suit and examined her witnesses and cross examined the witnesses produced on behalf of the plaintiff. Now, the prayer of the defendant-petitioner, when the suit has already reached at the stage of final hearing, for permission to file written statement without explaining as to what are the shortfalls or omissions in the written statement filed by the guardian ad litem on his behalf, is not tenable as the averments are vague and ambiguous. In the case of Vaidyanath Sahay (Supra) the court-appointed guardian did not contest the suit properly and allowed the same to be decreed ex-parte. Thus, this Court had held, while remanding the matter to the court below, that the record of ex- parte decree and order sheet of the suit by way of additional evidence be brought on record so that one can reach to a proper conclusion about the alleged gross negligence of the pleader guardian and the lower appellate court was directed to pass an order after appreciation of the additional evidence. However, there is no such alike situation in present case. 8. In view of the above, I do not find it to be a 10 proper case in which the interference is required by this Court in exercise of its revisional jurisdiction. 9. As a result, this Civil Revision fails and is, accordingly, dismissed. 10. However, since the suit is yet to be disposed of and the defendant-petitioner, who was minor, has already attained majority and has stated that no witness has been examined by the guardian ad litem on his behalf, the court below is directed to allow him to produce witnesses on his behalf. He shall at once furnish the list of witnesses and produce his witnesses for examination and cross examination on fixed dates. The Trial Court will not grant unnecessary adjournment to this petitioner on that pretext unless and until it is satisfied that the same is necessary for the ends of justice. (Dr. Ravi Ranjan, J) Patna High Court, Patna. Dated: The 22nd of December, 2009. Pradeep Srivastava/A.F.R.