Bombay High Court
Kashinath Umaji Bedare And ... vs Nirmala Bharat Bedare And Others on 28 July, 2022
Bench: M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2390 OF 2018
1. Kashinath s/o Umaji Bedare
age 67 years, occ. Agriculture
r/o Pathri, Tq. Pathri
Dist. Parbhani
2. Bharat s/o Kashinath Bedare
age 46 years, occ. Agriculture
r/o Pathri, Tq. Pathri
Dist. Parbhani Petitioners
Versus
1. Nirmala w/o Bharat Bedare
age 43 years, occ. Nil,
r/o At present Ashti
Tq. Partur, Dist. Jalna
2. Pooja d/o Bharat Bedare
age 20 years, occ. Education
r/o At present Ashti
Tq. Partur, Dist. Jalna.
3. Kashibai w/o Kashinath Bedare
age 62 years, occ. Household
r/o Pathri, Tq. Pathri,
Dist. Parbhani Respondents
Mr. B. V. Thombre, Advocate holding for Mr. P. V. Kalani, Advocate for
the petitioners.
Mr. V. B. Deshmukh, Advocate for respondents No. 1 and 2.
CORAM : M.G. Sewlikar, J.
DATE : 28th JULY, 2022.
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ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith.
2. With the consent of the parties, taken up for fnal
hearing at the stage of admission.
3. Facts leading to this petition are that respondent No. 1 is
the wife of petitioner No. 2 and respondent No. 2 is the daughter of
petitioners No. 1 and 2. Petitioner No. 2 is the father-in-law of
respondent No. 3.
4. Respondent No. 1 fled Regular Civil Suit No. 31/2014 at
Pathri, Dist. Parbhani, for maintenance. In this suit, initially,
petitioners and respondent No. 3 only were the parties. In the year
2017, application for impleadment of petitioner No. 2 was made.
Another application Exhibit 47 was made for appointment of
petitioner No. 1 as the next friend. Both these applications were
heard by the learned Civil Judge, Junior Division, Pathri. By order
dated 5th July, 2017, both these applications were allowed by the
impugned order. This order is impugned in this petition.
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5. I have heard learned counsel for the petitioners and
learned counsel for respondents No. 1 and 2.
6. Learned counsel for petitioners submits that after a
period of three years, this application was moved by respondents No.
1 and 2. He further submits that in terms of Order 1 Rule 10 of the
Code of Civil Procedure, and in terms of Order 32 Rule 4(4) of the
Code of Civil Procedure, consent of the proposed next friend or
guardian is required to be obtained before appointing him as the next
friend. He submits that no such consent was given. Therefore, the
order is illegal and cannot be sustained.
7. Learned counsel for respondents No. 1 and 2 supports
the order passed by the learned Trial Court.
8. Order 1 Rule 10(3) of the Code of Civil Procedure
contemplates appointment of next friend of the plaintiff with his
consent. The rule is worded negatively which reads thus :-
10. Suit in name of wrong plaintiff -
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(3) No person shall be added as a plaintiff suing
without a next friend or as the next friend of a plaintiff
under any disability without his consent.
A bare reading of this rule makes out that it refers only
to the plaintiff and not to the defendant. Therefore, this rule is of no
assistance to the petitioner.
9. On reading application Exhibit 47 and the order passed
on it, it is seen that the application was fled for appointment of
petitioner No. 1 as next friend of petitioner No. 2. Petitioner No. 1
was called upon to fle his say. Petitioner No. 1 has fled his say. He
has nowhere contended that he does not consent for being appointed
as the next friend. The only say he has given is that the suit is old
and it is posted for argument and this application is fled just to
protract the litigation. From this say, it cannot be carved out as to
whether the petitioner No. 1 did not give consent and without his
consent, he came to be appointed as the next friend.
11. In this view of the matter, the petition is devoid of any
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substance hence it is dismissed. No costs. Rule discharged.
( M. G. SEWLIKAR )
Judge
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