Bombay High Court
Rekha Dnyanoba Shinde And Ors vs Sheetal Dnyanoba Shinde And Anr on 13 August, 2021
Bench: V. V. Kankanwadi
ca-4159-2012 sast-5994-12.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.4159 OF 2012
IN SAST/5994/2012
WITH CA/4160/2012 IN SAST/5994/2012
WITH SAST/5994/2012
REKHA W/O DNYANOBA SHINDE AND ORS
VERSUS
SHEETAL D/O DNYANOBA SHINDE AND ANR
...
Mr. P. D. Jarare h/f Mr. S. S. Thombre, Advocate for applicants.
Mr. A. S. Shivpuje, Advocate for respondent No.1.
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 13.08.2021
ORDER :-
. Civil Application No.4159 of 2012 has been filed for getting the
delay of 266 days condoned in filing second appeal.
2. Heard learned Advocate Mr. P. D. Jarare holding for learned
Advocate Mr. S. S. Thombre for applicants and learned Advocate Mr. A.
S. Shivpuje for respondent No.1.
3. Applicant No.1 is contending that she is a poor lady and having 3
minor children, could not contact lawyer after the decision of the first
Appellate Court. The delay is unintentional and according to her, she has
a good case on merits.
ca-4159-2012 sast-5994-12.odt
4. The applicants are original defendant Nos.1, 2 and 4. Present
respondent No.1 is the original plaintiff, who had filed Regular Civil Suit
No.94 of 2003 for partition and separate possession before learned Joint
Civil Judge Junior Division, Georai. The said suit came to be decreed on
22.11.2006. Present applicants challenged the said decree in Regular
Civil Appeal No.07 of 2007 before the learned District Court, Beed. The
said appeal was heard by learned District Judge-1, Beed and it was
dismissed on 13.03.2011.
5. Taking into consideration the reasons stated and taking liberal
view, the delay of 266 days deserves to be condoned. Accordingly, it is
condoned.
6. With consent of both the parties, the Second Appeal is taken for
admission immediately, since the applications are pending since 2012.
Submissions on behalf of both sides have been heard.
7. According to appellants, substantial questions of law are arising in
this case. It has been stated that the suit itself was not maintainable in
view of the fact that the suit was filed through guardian grandmother,
who was not got appointed by order of Court. Both the Courts below
have not considered the facts and circumstances properly, so also the
law points involved in the same. The Courts below failed to consider
ca-4159-2012 sast-5994-12.odt
that defendant No.3 i.e. present respondent No.2, who is the father of
deceased Dnyanoba, is also having share in the suit properties, as he is
Class-II heir of deceased Dnyanoba. In fact, the guardian grandmother
Laxmibai Asaram Kale is not the real grandmother of the plaintiff and,
therefore, she was unable to represent the interest of the plaintiff.
8. Learned Advocate for respondent No.1 supported the reasons
given by both the Courts below and submitted that no substantial
questions of law are arising in this case.
9. Admittedly, plaintiff was minor when the suit was filed. The title
of the suit shows that the minor is through guardian grandmother. The
point raised by learned Advocate for the appellants has no force of law
for the simple reason that a suit by minor is to be filed through next
friend and not a guardian in view of Order XXXII Rule 1 of Code of Civil
Procedure, which runs thus :-
"1. Minor to sue by next friend.--
Every suit by a minor shall be instituted in his name by
a person who in such suit shall be called the next
friend of the minor."
The legislature has intentionally not used the word guardian in
Rule 1. Further, there is no mandatory provision that the said next
friend of the minor should be got appointed through Court. However,
ca-4159-2012 sast-5994-12.odt
the further rules i.e. Rule 2 and 2A of Order XXXII makes safeguards in
respect of the suits, which have been instituted without next friend and
there is provision of taking security from next friend at any stage of the
suit either by the Courts own motion or on the application filed by any
defendant. Thereby, by this provision, the interest of the minor in the
property or the subject matter of the suit can be protected, however,
appointment of guardian is mandatory in respect of suit against minor
defendant. The procedure has been, therefore, prescribed in Order
XXXII Rule 3. As regards the next friend is concerned, Order XXXII Rule
4A prescribes, who may act as next friend in the suit. It provides in sub-
rule (1) of Rule 4 of Order XXXII that 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. The only condition that has been put by way of
proviso is that the interest of such person should not be adverse to that
of the minor and that he is not, in the case of a next friend, a defendant,
or, in the case of a guardian for the suit, a plaintiff. Now, in this case,
said Laxmibai Asaram Kale is not defendant in the suit and there was
nothing before the Courts below to come to the conclusion that she has
adverse interest against the minor plaintiff. Therefore, there is
absolutely no legal lacuna that has been left at the time of institution of
the suit.
ca-4159-2012 sast-5994-12.odt
10. Plaintiff claimed that the suit property is ancestral. She was the
daughter of deceased Dnyanoba. Dnyanoba expired on 08.01.2003. The
next friend Laxmibai was looking after the minor plaintiff. According to
the plaintiff, Dnyanoba had illicit relations with defendant No.1.
Defendant No.1 is not the legally wedded wife of deceased Dnyanoba.
The plaintiff was honest in saying that her uncle had filed Regular Civil
Suit No.29 of 2003, however, due to technical problem that suit was
withdrawn. Thereafter, defendant No.1 got her name mutated to the
suit lands and, therefore, she prayed that she is having half share in the
suit property which should be separated and she should be put in
possession.
11. Defendant Nos.1 and 2 had not denied the relationship in their
written statement between minor plaintiff and Dnyanoba. It was claimed
that defendant No.1 is the legally wedded wife of Dnyanoba. According
to the defendants, another daughter by name Nikita who was born from
deceased Dnyanoba has made party to the suit. After the evidence was
led, the learned Trial Judge held that plaintiff has 1/4th share in the suit
property and the suit came to be decreed accordingly. As regards non
joining of Nikita as party, it appears that at a very late stage i.e. when
the matter was posted for pronouncement of judgment, she came to be
added as defendant. The first Appellate Court has also dealt with all
ca-4159-2012 sast-5994-12.odt
those points and arrived at the same conclusion and, therefore, appeal
has been dismissed.
12. No substantial questions of law as contemplated under Section
100 of the Code of Civil Procedure are arising in this case and, therefore,
in view of Kirpa Ram (deceased) through Lrs. and others Vs. Surendra
Deo Gaur and others, [2021 (3) Mh.L.J. 250], the second appeal stands
dismissed at the admission stage.
13. Civil Application Nos.4159 of 2012 and 4160 of 2012 also stand
disposed of.
[SMT. VIBHA KANKANWADI, J.]
scm
