Madhya Pradesh High Court
Smt. Kesarbai vs Harinarayan on 24 April, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:10867
1 MP-4273-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 24 th OF APRIL, 2025
MISC. PETITION No. 4273 of 2024
SMT. KESARBAI
Versus
HARINARAYAN AND OTHERS
Appearance:
Shri Namit Jain - Advocate for the petitioner.
Ms. Bhavna Raikwar - Advocate for the respondents No.5 to 15.
Shri Rajendra Kumar Samdani - Advocate for respondents No.1 to 3.
ORDER
With consent of learned counsel for the parties, the matter is finally heard.
02. This petition under Article 227 of the Constitution of India has been
preferred by plaintiff No.1-A / petitioner being aggrieved by the order dated
10.04.2024 passed by the appellate Court whereby on an application under Order
32 Rule 1 and 7 of the CPC preferred by plaintiff No.12 (A) / respondent No.16
she has been appointed as guardian of plaintiff No.12 (B) and (C) / respondents
No.17 and 18 for entering into a compromise on their behalf.
03. The claim of the plaintiffs for declaration of title and declaration that
mutation of defendants No.1 to 3 is illegal and for permanent injunction has been
decreed by the trial Court by judgment and decree dated 01.12.2023 which is
subject matter of appeal preferred before the appellate Court. In the appeal an
application under Order 23 Rule 3 of the CPC was filed by some of the parties for
recording of compromise between them. Since the compromise was being entered
into by plaintiff No.12(A) also on behalf of plaintiffs No.12(B) and (C), her minor
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children, she filed an application under Order 32 Rule 7 of the CPC which has
been allowed by the appellate Court by the impugned order.
04. The application preferred by plaintiff No.12(A) was under the
provisions of Order 32 Rule 7 of the CPC which is as under:-
"7. Agreement or compromise by next friend or guardian for the suit .--(1) No
next friend or guardian for the suit shall, without the leave of the Court,
expressly recorded in the proceedings, enter into any agreement or compromise
on behalf of a minor with reference to the suit in which he acts as next friend or
guardian.
[(1-A) An application for leave under sub-rule (1) shall be accompanied by an
affidavit of the next friend or the guardian for the suit, as the case may be, and
also, if the minor is represented by a pleader, by the certificate of the pleader, to
the effect that the agreement or compromise proposed is, in his opinion, for the
benefit of the minor:
Provided that the opinion so expressed, whether in the affidavit or in the
certificate shall not preclude the Court from examining whether the agreement
or compromise proposed is for the benefit of the minor.]
(2) Any such agreement or compromise entered into without the leave of the
Court so recorded shall be voidable against all parties other than the minor."
05. As per the said rule, the application for leave is also, if the minor is
represented by a pleader, to be accompanied by the certificate of the pleader to the
effect that the agreement or compromise proposed is, in his opinion, for the
benefit of the minor. There is also a proviso which states that the opinion of the
pleader shall not preclude the Court from examining whether the agreement or
compromise proposed is for the benefit of the minor.
06. From a perusal of the impugned order, it is observed that plaintiffs
No.12 (B) and (C) are being represented by a pleader. However, it does not appear
that along with the application under Order 32 Rule 7 of the CPC, his certificate
was filed as is required thereunder. The appellate Court has only relied upon the
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affidavit of plaintiff No.12(A) while allowing the application. The appellate Court
has allowed the application merely for the reason that the same is supported by
affidavit of plaintiff No.12(A) and has appointed her as guardian of plaintiffs
No.12(B) and (C) for entering into a compromise.
07. Learned counsel for the petitioner has also submitted that the provisions
of Section 12 of the Hindu Minority and Guardianship Act, 1956 have not been
followed. However, it has been pointed out by the learned counsel for the
respondents that guardian for the minors has already been appointed by the trial
Court by order dated 01.08.2023 which has not been challenged. Since there is an
order appointing a guardian in the appeal which has not been challenged, the said
ground is no longer available to the petitioner to be raised at the present stage.
However, that would not preclude the necessary compliance of the provision of
Order 32 Rule 7 of the CPC.
08. Consequently, the impugned order dated 10.04.2024 passed by the
appellate Court is hereby set aside and the matter is remanded back to it to
redecide the application under Order 32 Rule 1, 7 of the CPC in accordance with
the legal provisions and in view of the observations as made hereinabove.
09. The petition is accordingly disposed off.
(PRANAY VERMA)
JUDGE
Shilpa
