# Smt. Katori Devi Defendant/ v. Nawab Singh and others

- **Citation:** (2009) 3 ILRA 973
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-26
- **Case number:** Second Appeal No. 802 of 2008
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-katori-devi-defendant-v-nawab-singh-and-others-41593
- **Pages:** 6

## Headnote

Code of Civil Procedure-Order XXXI Rule3, 4 and 4-A-Appointment of legal
Guardian-during
pendency
of
suit
mother of appellant died-Substitution of
appellant being grandson through his
sister- filed through the sister of minor-
dismissed- even on record appeal stage
same
objection
raised-held-hyper
technical-finding recorded to the effect
the sister had right to appear through
minor- finding became final- if no
challenge of the appointment of natural
guardian-court not oblige to appoint
legal guardian.

Held: Para 14 & 18

In the facts of the present case the Court
records that the real sister had right to
act as the guardian of the minor brother
in view of Order XXXII Rule 4A of the
Code of Civil Procedure and therefore it
is in this background that appropriate
orders
were
not
passed
on
the
application being paper no. 98A, as the
real sister responded after substitution
to represent the interest of minor
brother, Shanker. It is legally to be
presumed that she was authorised by
the Court to act as such. In the opinion
of the Court, objection now raised by codefendant is hyper technical in nature
and the courts below are legally justified
in rejecting the same.

It is settled law that all Courts of law are
established for furtherance of interest of
substantial justice and not to obstruct
the same on technicalities. Reference--
Jai Jai Ram Manohar Lal vs. National
Building Material Supply; AIR 1969 SC
1267, wherein it has been held that if
substantial justice and technicalities are
pitted against each other, the cause of
substantial
justice
should
not
be
defeated on technicalities. No procedure
in a Court of law should be allowed to
defeat the cause of substantial justice on
some
technicalities.
ReferenceGhanshyam Dass & Ors. vs. Dominion of
India & Ors; (1984) 3 SCC 46.
Case law discussed:
AIR 1968 SC 954, W.P. No.45549 of 1993,
decided on 20th December, 1993, AIR 1992
Punjab and Haryana 95. 1972 AIR(All) 513,
AIR 1969 SC 1267, (1984)3 SCC 46.

## Text

3 All] Smt. Katori Devi V. Nawab Singh and others
973
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2009

BEFORE
THE HON'BLE ARUN TANDON, J.

Second Appeal No. 802 of 2008

Smt. Katori Devi ...Defendant/Appellant
Versus
Nawab Singh and others ...Respondent

Counsel for the Appellant:
Sri Jai Shanker Prasad Singh

Counsel for the Opposite Parties:
Sri Madhav Jain

Code of Civil Procedure-Order XXXI Rule3, 4 and 4-A-Appointment of legal
Guardian-during
pendency
of
suit
mother of appellant died-Substitution of
appellant being grandson through his
sister- filed through the sister of minor-
dismissed- even on record appeal stage
same
objection
raised-held-hyper
technical-finding recorded to the effect
the sister had right to appear through
minor- finding became final- if no
challenge of the appointment of natural
guardian-court not oblige to appoint
legal guardian.

Held: Para 14 & 18

In the facts of the present case the Court
records that the real sister had right to
act as the guardian of the minor brother
in view of Order XXXII Rule 4A of the
Code of Civil Procedure and therefore it
is in this background that appropriate
orders
were
not
passed
on
the
application being paper no. 98A, as the
real sister responded after substitution
to represent the interest of minor
brother, Shanker. It is legally to be
presumed that she was authorised by
the Court to act as such. In the opinion
of the Court, objection now raised by codefendant is hyper technical in nature
and the courts below are legally justified
in rejecting the same.

It is settled law that all Courts of law are
established for furtherance of interest of
substantial justice and not to obstruct
the same on technicalities. Reference--
Jai Jai Ram Manohar Lal vs. National
Building Material Supply; AIR 1969 SC
1267, wherein it has been held that if
substantial justice and technicalities are
pitted against each other, the cause of
substantial
justice
should
not
be
defeated on technicalities. No procedure
in a Court of law should be allowed to
defeat the cause of substantial justice on
some
technicalities.
ReferenceGhanshyam Dass & Ors. vs. Dominion of
India & Ors; (1984) 3 SCC 46.
Case law discussed:
AIR 1968 SC 954, W.P. No.45549 of 1993,
decided on 20th December, 1993, AIR 1992
Punjab and Haryana 95. 1972 AIR(All) 513,
AIR 1969 SC 1267, (1984)3 SCC 46.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard learned counsel for the
appellant.

2. This is defendant's second appeal.

3. One Lochan Singh executed an
agreement to sell in favour of respondentplaintiff Nawab Singh on 1st July, 1995.
Before the sale-deed could be executed in
terms of agreement to sell, Lochan Singh
expired. For specific performance of the
contract, Nawab Singh filed original Suit
No. 141 of 1996, impleading the mother
of Lochan Singh, namely, Ramshree, as
the defendant being the legal heir of
Lochan Singh. In between, said Ramshree
is stated to have executed a sale-deed in
respect of same property in favour of
Katori Devi and Sushila Devi. During the
pendency of the suit, said Ramshree also
expired and in her place, an application
974 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
for substitution of grand-son of Ramshree
namely, Shanker, who was minor at the
relevant time, and was orphan, as his
mother and father pre-deceased the grand
mother, was filed through his sister,
namely, Babali. On the substitution
application, notices were issued. It
appears that natural guardian, Babali did
not respond to the notice and therefore, an
application was made by the plaintiff for
appointment of an advocate as Guardian
to Shanker under order of the Court with
reference to the provisions of Order
XXXII Rule 3 of the Code of Civil
Procedure. Before formal orders could be
passed
on
the
application,
Babali
responded and appeared to protect the
interest of her minor brother. She
appeared before the trial court and filed
her
written
submissions.
She
also
contested the proceedings in the suit filed
by Navab Singh. The suit was ultimately
decreed under judgment and decree dated
31st January, 2007. Not being satisfied,
Shankar through his sister Babali as well
as subsequent purchasers, namely, Katori
Devi and Sushila Devi filed Civil Appeal
No. 13 of 2007. The appeal filed has also
been dismissed by the first appellate court
vide judgement and order dated 31st May,
2008. Hence the present second appeal.

4. This present second appeal has
been filed by subsequent purchaser of the
property in question, namely, Katori Devi
only. Shanker through his guardian,
Babali has been impleaded as proforma
respondent no.2.

5. On behalf of the appellant,
judgment and orders of the courts below
are being challenged on the ground that
despite application having been made
under Order XXXII Rule 4 (4) of the
Code of Civil Procedure, no orders on the
applications were passed by the court
concerned appointing a guardian for the
minor defendant, Shanker and Smt.
Babali therefore, had no right to represent
the interest of Shanker. The decree was
passed against the minor in absence of
any guardian having been appointed
under Order XXXII Rule 3 of the Code of
Civil Procedure and therefore be declared
as null and void.

6. I have considered the submissions
made by the learned counsel for the
appellant and have examined the records
of the present second appeal.

7. The trial court framed issue no.9
for deciding as to whether the suit as filed
by the plaintiff is hit by Order XXXII
Rule 3 of the Code of Civil Procedure or
not.

8. This Court finds that suit was
instituted against Smt. Ramshree. After
her death, Shanker, who was minor was
substituted through her real sister. Notices
were issued to the substituted legal heir
through Babali. However, Smt. Babali did
not respondent. Plaintiff therefore, made
an application under Order XXXII Rule 4
(4) read with Section 151 of the Code of
Civil Procedure for a guardian being
appointed for Shanker. Before orders
could be passed on the said application,
Smt. Babali appeared as the Guardian of
Shanker and filed her written statement,
she also contested the proceedings. At no
point of time, any objection was raised by
the appellant qua substitution of Shanker,
who was minor through her real sister in
whose custody, he was residing. The suit
was decreed by the trial court vide
judgment and decree dated 31st January,
2007. Against the said decree, civil appeal
no. 13 of 2007 was filed by Shanker
3 All] Smt. Katori Devi V. Nawab Singh and others
975
through her sister along with Smt. Katori
Devi and Smt. Sushila Devi and the
plaintiff was impleaded as respondent in
the appeal. The first appellate court
considered the objection with regard to
the orders under Order XXXII Rule 4 (4)
having not been passed on the application
made by the plaintiff being paper no. 98A and held that present appeal itself has
been filed by Shanker through her natural
guardian as the sister and at no point of
time, any objection was raised, even when
substitution was directed and amendments
were made in the plaint itself before the
trial court. The Court, therefore, held that
in these circumstances, it cannot be said
that sister was not looking after the
interest of her minor brother or that she
had any adverse interest in the property
vis-a-vis minor brother Shanker. The first
appellate
court
therefore,
held
that
objection in that regard by the appellant
was too technical in nature and cannot be
used as a tool to defeat the lawful decree
of the court below.

9. Before this Court the same plea
has been raised qua orders being not
passed on application being paper no. 98A made under Order XXXII Rule 3 & 4
of the Code of Civil Procedure and
therefore, the judgement and decree of the
courts below be declared null and void.

10. This Court may record that
Shanker has not chosen to file any appeal
against the judgement and decree of the
first appellate court and he has permitted
the order become final.

11. For appreciating the controversy,
it would be worthwhile to reproduce
Order XXXII Rule 3, 4 and 4A as
substituted in the State of Uttar Pradesh,
which reads as follows:
"ORDER XXXII
SUITS BY OR AGAINST MINORS
AND PERSONS OF UNSOUND MIND

3. Guardian for the suit to be
appointed
by
Court
for
minor
defendant.--(1) Where the defendant is a
minor the Court, on being satisfied of the
fact of his minority, shall appoint a proper
person to be guardian for the suit for such
minor.

(2) An order for the appointment of
a guardian for the suit may be obtained
upon application in the name and on
behalf of the minor or by the plaintiff.
(3) Such
application
shall
be
supported by an affidavit verifying the
fact that the proposed guardian has no
interest in the matters in controversy in
the suit adverse to that of the minor and
that he is fit person to be so appointed.
(4) No order shall be made on any
application under this rule except upon
notice to any guardian of the minor
appointed or declared by an authority
competent in that behalf, or, where there
is no such guardian, [upon notice to the
father or where there is no father, to the
mother, or where there is no father or
mother, to other natural guardian] of the
minor, or, where there is [no father,
mother or other natural guardian], to the
person in whose care the minor is, and
after hearing any objection which may be
urged on behalf of any person served with
notice under this sub-rule.
[(4A)
The Court may, in any
case, if it thinks fit, issue notice under
sub-rule (4) to the minor also.]
[(5.)
A person appointed under
sub-rule (1) to be guardian for the suit for
a minor shall, unless his appointment is
terminated by retirement or removal or
death, continue as such throughout all
976 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
proceedings arising out of the suit
including proceedings in any Appellate or
Revisional Court and any proceedings in
the execution of a decree.]"
4. Who may act as next friend or
be appointed guardian for the suit. --(1)
Any person who is of sound mind and has
attained majority may act as next friend of
a minor or as his guardian for the suit:

HIGH COURT AMENDMENTS

Allahabad.--(a) In Order XXXII, for
rule 4, substitute the following rule,
namely:---
"4.(1) Where a minor has a guardian
appointed or declared by competent
authority no person other than such
guardian shall act as next friend, except
by leave of the Court.
(2) Subject to the provisions of subrule (1) any person who is of sound mind
and has attained majority may act as next
friend of a minor, unless the interest of
such person is adverse to that of the
minor, or he is a defendant, or the Court
for other reasons to be recorded considers
him unfit to act.
(3) Every next friend shall, except as
otherwise provided by clause (5) of this
rule, be entitled to be reimbursed from the
estate of the minor any expenses incurred
by him while acting for the minor.
(4) The Court may, in its discretion,
for reasons to be recorded, award costs of
the suit, or compensation under Section
35A or section 95 against the next friend
personally as if he were a plaintiff.
(5) Costs or compensation awarded
under clause (4) shall not be recoverable
by the guardian from the estate of the
minor, unless the decree expressly directs
that they shall be so recoverable."
4A. (1) Where a minor has a
guardian
appointed
by
competent
authority no person other than such
guardian shall be appointed his guardian
for the suit unless the Court considers, for
reasons to be recorded, that it is for the
minor's welfare that another person be
appointed.
(2) Where there is no such guardian
or where the Court considers that such
guardian should not be appointed it shall
appoint as guardian for the suit the
natural guardian of the minor, if
qualified, or where there is no such
guardian the person in whose care the
minor is, or any other suitable person
who has notified the Court of his
willingness to act or failing any such
person, an officer of the Court.
Explanation.---An officer of the
Court shall for the purposes of this subrule include a legal practitioner on the roll
of the Court."

12. From conjoint reading of Order
XXXII Rule 3, 4 and 4A as applicable in
the State of Uttar Pradesh, it would be
apparently clear that if there is no
guardian appointed by a competent
authority and the Court considers that
such guardian should not be appointed, or
the Court feels that such appointed
guardian should not act as the guardian
for the minor in the suit, the natural
guardian of the minor, if qualified or
where there is no guardian, person in
whose care the minor is, or nay other
suitable person, who has notified the
Court of his willingness to act or failing
any such person, an officer of the Court
can be appointed as the Guardian. What
follows from the aforesaid is that the
Court is under legal obligation to appoint
the person declared to be the guardian of
the minor by a competent authority at the
first instance and if no such appointed
guardian is available or when the Court
3 All] Smt. Katori Devi V. Nawab Singh and others
977
finds that such appointed guardian should
not act, it has to appoint the natural
guardian of the minor, if qualified, and
where there is no such guardian the
person in whose care the minor is as the
guardian.

13. In the facts of the present case, it
is apparently clear that the minor Shanker
was in the care of his real sister as the
father and mother had predeceased the
grand parents. Further the minor was
impleaded through is real sister and no
objections were filed to such impleadment
at any point of time by the respondentdefendants. Suit was contested all along
and having lost before the trial court.
Civil appeal was also preferred through
the same guardian, namely, his real sister.
The civil appeal has also been dismissed.
The Subsequent purchaser, who has
preferred the second appeal objects to the
acting of the real sister as the guardian.

14. In the facts of the present case
the Court records that the real sister had
right to act as the guardian of the minor
brother in view of Order XXXII Rule 4A
of the Code of Civil Procedure and
therefore it is in this background that
appropriate orders were not passed on the
application being paper no. 98A, as the
real sister responded after substitution to
represent the interest of minor brother,
Shanker. It is legally to be presumed that
she was authorised by the Court to act as
such. In the opinion of the Court,
objection now raised by co-defendant is
hyper technical in nature and the courts
below are legally justified in rejecting the
same.

15. On a simple reading of the
aforesaid provision, this Court may record
that it is only an enabling provision,
which permits the representation of the
minor in a suit, in case it is found that
natural guardian is not representing the
interest of minor to the best of his interest
or they have interest themselves in the
dispute
in
question.
Such
enabling
provisions cannot be read so as to suggest
that if interest of minor is already
represented by a natural guardian, even
then an application under Order XXXII
Rule 3 of the Code of Civil Procedure is
required to be filed and any orders on
such application are mandatory. If the
interest of minor is protected by a natural
guardian and there is no challenge either
by the minor or by the plaintiff to such
representation of the minor by the natural
guardian, the provisions of Order XXXII
Rule 3 of the Code of Civil Procedure will
have no application.

Learned counsel for the appellant
contends that there has to be an order by
the Court, permitting the natural guardian
to represent the interest of the minor.

16. I am of the considered opinion
that such orders are procedural in natural
and cannot be permitted to be used to
defeat the judgment and decree of the
Court at the behest of a third person, who
is neither the minor nor his guardian of
the minor, more so when there is nothing
on record to establish that the natural
guardian was not acting in the best
interest of the minor or that she had some
interest in the suit proceedings.

Learned counsel for the appellant has
placed reliance upon the following
various judgements in support of the case:

(1) Ram Chandra Arya vs. Man Singh &
Anr. Reported in AIR 1968 SC 954,
978 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
(2) Sri Arjun Singh vs. IInd Addl. Civil
Judge, Aligarh & Ors. passed in Civil
Misc. Writ Petition No. 45549 of 1993,
decided on 20th December, 1993,
(3) Gurpreeet Singh vs. Chatterbhuj
Goel, reported in AIR 1992 Punjab and
Haryana 95,
(4) Bachcha vs. Lakhpali Devi & Ors.,
reported in 1972 AIR (All) 513.

17. The judgements relied upon by
the learned counsel for the appellant are
clearly distinguishable in the facts of the
present case, wherein the intent and scope
of Order XXXII Rule 4A of the Code of
Civil
Procedure
was
neither
under
consideration nor has been examined.

18. It is settled law that all Courts of
law are established for furtherance of
interest of substantial justice and not to
obstruct the same on technicalities.
Reference-- Jai Jai Ram Manohar Lal vs.
National Building Material Supply; AIR
1969 SC 1267, wherein it has been held
that if substantial justice and technicalities
are pitted against each other, the cause of
substantial justice should not be defeated
on technicalities. No procedure in a Court
of law should be allowed to defeat the
cause of substantial justice on some
technicalities.
Reference-Ghanshyam
Dass & Ors. vs. Dominion of India & Ors;
(1984) 3 SCC 46.

19. This Court may record that the
findings recorded by the courts below in
respect of right of Babali to represent
Shanker under the impugned judgment
has become final between the plaintiff and
defendant-Shanker, as he has not chosen
to file any second appeal.

20. No other point was pressed. No
substantial questions of law arises. The
second appeal is dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2009

BEFORE
THE HON'BLE RAJESH CHANDRA, J.

Criminal Revision No. 2971 of 2009

Kailash Babu Gupta
 ...Revisionist
Versus
Sate of U.P. and another...Opposite Party

Counsel for the Revisionist:
Sri Satish Trivedi
Sri Ram Kishor Gupta

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 397Criminal Revision offened under Section
302,307,504 IPC-after committe of case
before
session
judge-Discharge
application
or
ground-during
investigation
nowhere
named
the
revisionist merely on suspicion no charge
can be framed-held-court not bound with
conclusion of investigation officer-even
on suspicion-charges can be framed-No
illegality committed by Trail Court-No
interference called for

Held: Para 13

It is true that the investigating officer
has concluded that the involvement of
the revisionist Kailash Gupta has not
been found in the murder of Gaurav but
the court is not bound by the conclusions
arrived at by the investigating officer.
There is sufficient material in the case
diary showing that the accused Kailash
Gupta is also prima facie involved in the
murder of Gaurav and the infliction of
injuries to Mangal Tiwari.