# that you consent to be appointed guardian for the suit‖

- **Citation:** C.L. No. 22/VIII
- **Court:** Allahabad High Court
- **Decided:** 1915-05-04
- **Case number:** C.L. No. 22/VIII
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/that-you-consent-to-be-appointed-guardian-for-the-suit-163069
- **Pages:** 2

## Text

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
127
The examination of the parties or their pleaders at the time of issues under Order
X, rule 1, is not purely discretionary with the presiding officers. Whenever there are any
allegations of fact in the plaint or written statement which have not been expressly or by
necessary implication admitted or denied by opposite party the court is bound to clear up
the pleadings by an examination of the opposite party or his pleader. The omission to do
so often prolongs the trial and gives opportunity for these admissions of false evidence at
later stage.
It is generally the case that the additional pleadings in the written statement
contain fresh allegations of fact and some officers seem to be unaware that it is their duty
before framing issues to find out how for these additional pleas are admitted by the
plaintiff. A simple instance is a suit for redemption of mortgage in which the defendant
sets up two deeds for further charge and alleges that the plaintiff cannot redeem the
mortgage in suit without redeeming these also. The defence my be either-
(1)
a denial of the genuineness of the deeds; or
(2)
an admission of execution of the deeds coupled with the plea that they
have been paid off, or
(3)
an admission that the deeds are genuine and outstanding coupled with the
plea that the mortgage in suit is separately redeemable.
It is obviously important to pin the plaintiff down to a definite case before the suit
goes to trial. In another case the plaintiff sued for the rent of a house. The defendant
alleged that he was the owner of the house and had himself acquired it by purchase, and
adduced a considerable body of evidence to prove this defence. During the course of the
trial the plaintiff was examined as a witness and at once admitted the defendant's title to
the house and stated that what he was claiming was ground rent for the site. If the
plaintiff had been examined at the first hearing under O.X, Rule I, much unnecessary
expense and time would have been saved. [See Order 10 rule 2, amended in 1976].
Order X, rules 1 to 3, Order XIV, rules 1 and 4,
Civil Procedure Code
C.L. No. 22/VIII h dated 18th March,1949
Order X, rule 1, Civil Procedure Code makes it obligatory upon the court to
ascertain from each party or his pleader whether he admits or denies such allegations of
facts as are made in the plaint or written statement, if any, of the opposite party and are
not expressly or by necessary implication admitted or denied by the party against whom
they are made, and to record such admissions and denials. Similarly Order XIV, rule 1(5)
lays down that the court shall after reading the plaint and the written statement, if any,
and after such examination of the parties as may appear necessary ascertain upon what
material propositions of fact or law the parties are variance and shall thereupon proceed
to frame and record the issues.
 The subordinate courts would, therefore, be well advised to read the plaint
immediately after its presentation to point out the defects found therein, and to fix a
reasonable date for the remedying of such defects. Therefore, a date should be fixed for
filing of written statement and another date, say a week later for framing of issues.
Wherever necessary, there should be replication by the plaintiff to admit, deny or to