# admitted (See note given at foot of Form no. 70)

- **Citation:** C.L. No. 2885/44-2(12)
- **Court:** Allahabad High Court
- **Decided:** 1915-05-04
- **Case number:** C.L. No. 2885/44-2(12)
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/admitted-see-note-given-at-foot-of-form-no-70-163066
- **Pages:** 2

## Text

125
not contain an entry of any case, which arises out of or flows from a plaint that has been
admitted (See note given at foot of Form no. 70)
(iv)
Minor defendants
C.L. No. 2885/44-2(12) dated 17th May,1921
A plaint in a suit where a minor is impleaded, as a defendant shall at once be
registered as a suit in Form no. 3 if it is found to be in order. After the plaint has been so
registered steps should at once be taken for the appointment of a guardian ad litem of the
minor defendant, but the proceedings taken for this purpose need not delay the issue of
summonses to adult defendants requiring them to file their written statements. It is to be
understood, however, that the suit cannot proceed to trial until the guardian ad litem has
been duly appointed and has filed a written statement on behalf of the minor.
Proceedings for the appointment of a guardian ad litem should be treated as
proceedings in the suit and not as separate miscellaneous judicial proceedings.
G.L. No. 12 Dated 22nd June,1909
The general procedure which should ordinarily be adopted under the Code of
Civil Procedure, 1908, in respect of the appointment of guardians in suits against minor
defendants is as follows:
Under order XXXII, rule 3 an order for the appointment of a guardian may be
made on an application either-
(a)
by the plaintiff, or
(b)
on behalf of the minor.
The plaint, therefore, should ordinarily be accompanied by an application
supported by an affidavit. This application should set forth the name (1) of the guardian
appointed or declared by competent authority, if any, (2) if there is no such guardian, of
the natural guardian, (3) if there is neither a guardian appointed or declared by
competent authority, nor natural guardian, of the person in whose custody the minor is,
and (4) of the person proposed to be appointed guardian, if the application and affidavit
as described above be filed, the court will then proceed under rule 3(4) to issue notice
in form 11 (H) to the minor and the person referred to in (1) or (2) or (3) above. This
notice in its present form may be regarded as precluding the appointment as guardian of
the person notified, unless he makes an application to that effect. This appears likely to
lead to inconvenience. It would, therefore, be well to substitute for the words ―proceed
to appoint some other person, etc‖ the words ―proceed to appoint you...... or some
other person, etc‖
If an application is filed on behalf of the minor before the issue of notice in Form
11(H), the issue of such notice to the guardian may or may not be necessary. In the latter
case, and when such notice has been issued whether an application has been filed on
behalf of the minor in response there to or not, the court shall at once proceed to appoint
a guardian. The guardian appointed or declared by competent authority shall be
appointed, if there is one, unless there be reasons to the contrary which the court must
record.
126
But as no person can be appointed as guardian without his consent, the court
before actually appointing a person as guardian should issue a notice to him in the
ordinary form to show cause (Form no.4, Appendix H), unless the person selected has
already, by application or otherwise, signified his willingness to act. To the form of the
notice when issued in these cases should be added the words ―and it will be presumed
that you consent to be appointed guardian for the suit‖.
Form 11 (H), as it stands, is addressed both to the minor and to the guardian. If
issued jointly to both it is likely to lead to confusion. It would be better to issue a separate
notice to each, the necessary alterations being made in manuscript.
G.L. No. 1745/3 to 1(c) dated 4th May, 1915
The attention of District Judges is drawn to Order XXXII, rule 4 of the Code of
Civil Procedure, 1908 under the provisions of which they may insist in any case when the
Nazir is appointed guardian ad litem that a legal practitioner be employed by him, his
fees being deposited by the plaintiff and recovered by him as part of his costs in the suit
or appeal in the event of his being successful. No doubt in some cases the real guardian of
a minor, if he believes that the plaintiff will have to pay the fees of counsel for the
defence, may refuse to act. Accordingly the Court considers that, while keeping in mind
the provisions of order XXXII, rule 4, District Judges should pass such order as appears
to them to be right and proper in each particular case.
G.L. No. 3/VII-d-34 dated 12th September,1956
Rules 1 and 4 of Order III of the Code of Civil Procedure provide that a
recognized agent of Mukhtar-i-am can appear, make an application and act in court on
behalf of the party duly authorising him but that pleading can be made only by a pleader
engaged on behalf of the party. Railway Inspectors who are paid servant of Railway
Administration and hold special power-of-attorney executed in their favour by the
General Manager should, therefore, not be allowed to plead in civil cases in which the
Railway Administration is a party.
Circular Latter No-32/2007 : Admin 'G' Dated :29 August, 2007.

On the above subject I am directed to inform you that to bring improvement in
the administration of Civil Justice System in the Chief Justices Conference-2007, it has
been resolved that the provisions relation to (a) examination of parties (Order X Rule 2
of C.P.C.), (b) discovery of the inspection (order XI of C.P.C., (c) issues (Order XIV
Rule 2 of C.P.C.) and the ex-parte injunction (Order XXXIX, Rule 3 and 3 A) be strictly
followed in letter and spirit by the subordinate Courts.

I am, therefore to request you to kindly bring the contents of the Circular Letter to
the notice of all the Judicial Officers working under you for strict compliance of the
directions of the Hon'ble Court.
(v)
Statement under Order X, Rule 2
G.L. No. 1359/67-73 dated 18th April, 1923 and
G.L. No. 61/VIII-h-13 dated 29th May, 1972