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Judgments of Supreme Court of India and High Courts

Indresh Patel vs Narad Choudhari 28 … on 28 January, 2020

Page No.1

AFR
HIGH COURT OF CHHATTISGARH, BILASPUR

Reserved for Order on : 25.11.2019

Order Passed on : 28/01/2020

W.P.(227) No. 711 of 2018
1. Indresh Patel, S/o. Late Shri Chhabi Lal Patel, Aged About 18
Years, R/o. Village Khokhara, Post- Tarkela, Tahsil- Pusour,
District- Raigarh, Chhattisgarh

2. Minor Suyash Patel, S/o. Late Shri Chhabi Lal Patel, Aged About
11 Years, Through- His Mother Natural Guardian Smt. Sarita
Patel, Wd/o. Late Shri Chhabi Lal Patel, R/o. Village- Khokhara,
Post- Tarkela, Tahsil- Pusour, District- Raigarh, Chhattisgarh

—- Petitioners

Versus

1. Narad Choudhari, S/o. Late Shri Than Singh Choudhari, Aged
About 37 Years, Occupation- Agriculture and Shop Keeper, R/o.
Village Kodatarai, Tahsil- Pusour, District- Raigarh, Chhattisgarh.

2. Smt. Sarita Patel, Wd/o. Late Shri Chhabilal Patel, Aged About 36
Years, Occupation -Service, R/o. Village Khokhara, Post- Tarkela,
Tahsil- Pusour, District- Raigarh, Chhattisgarh

3. The State of Chhattisgarh, Through- The Collector, District-
Raigarh, Chhattisgarh.

—–Respondents

For Petitioners : Mr. Roop Naik, Advocate

For Respondents No.1 and 2 : Mr. R.S. Patel with Mr. Palash Agrawal,
Advocates

For State/Respondent No.3 : Mr. Arijit Tiwari, P.L.
Page No.2

Hon’ble Shri Justice Rajendra Chandra Singh Samant

C A V ORDER

28/01/2020

1. Challenge in this petition is to the award of National Lok Adalat,

passed in Civil Suit No.38-A/2016 on 08.07.2016.

2. It is submitted by the learned counsel for the petitioners that the

petitioners were minor, who were arrayed as defendants in the

suit No.38-A/2016 and represented by the guardian Sarita Patel,

who is respondent No.2 in this petition. Award of Lok Adalat was

passed on the basis of the compromise between the respondent

No.1 as plaintiff and respondent No.2 as defendant on her own

behalf as well as on behalf of the petitioners, who were minor

defendants. It is submitted that the respondent No.2 has

overlooked the interest and welfare of the minors, which is

provided under Section 27 of the Guardians and Wards Act,

1890. The Presiding Officer of National Lok Adalat has also

overlooked the interest of the petitioners by passing the

impugned award, therefore, the award passed is illegal and

arbitrary. Relying on the judgment of Prevy Council in the matter

of Mohori Bibee Anr. Vs. Dharmodas Ghose, reported in

(1903) ILR 30 Cal. 539, it is submitted that the minor is

incompetent to contract, therefore, any money paid to him is not

recoverable and any agreement on his behalf is not enforceable.

Hence, the award of Lok Adalat is liable to be set-aside.

Page No.3

3. On behalf of the respondents, it is submitted that under Section

21 of the Legal Services Authority Act, the award passed by the

Lok Adalat can not be challenged in any Court in appeal as well

as under Article 227 of the Constitution of India. Placing reliance

on the judgment of this Court delivered on 22.02.2019 in W.P.

(227) 914 of 2018, it is submitted that setting-aside of any award

of Lok Adalat would amount to frustrate the purpose and intention

of the Legal Services Authorities Act, 1987, therefore, this petition

can not be entertained and allowed.

4. I have heard the learned counsel for both the parties and perused

the documents placed on record.

5. The question that mainly arises in this case is whether the

petitioners were legally represented in the civil suit and their

interest were legally protected by the guardian mentioned in the

plaint in accordance with law.

6. When a suit is filed against any minor defendants, in that case,

such suit has to be filed only as per the law of Code of Civil

Procedure provides. Order 32 Rule 3 of C.P.C. provides as under

:-

“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.”

7. Therefore, it is a necessity that when the defendant is a minor,

his guardian has to be appointed by the Court and the provisions
Page No.4

under Order 32 Rule 3 is mandatory provision, which has to be

strictly followed.

8. On perusal of the record of the Civil Suit No.38-A/2016, it is found

that suit was presented on 26.07.2016 and then notices were

issued to the defendants. The petitioners, who are arrayed as

defendant No.2 and 3 are shown to be represented by guardian

Smt. Sarita Patel. Defendants gave appearance through their

guardian, before the Court and then written statements was filed

and subsequent to which during the pendency of trial, the

guardian of the petitioners on their behalf has entered into a

compromise and then compromise decree was passed by the

Lok Adalat.

9. There is no where mentioned in the whole proceeding of the trial

Court in civil suit until it was compromised that any application

was filed by the petitioners praying for appointment of guardian

on behalf of the minor defendant/petitioners, therefore,

representation made by the respondent No.2 on behalf of the

petitioners was without any authority of the Court, which was

required compulsory under Order 32 Rule 3 of C.P.C. Without

such authority, the respondent No.2 had no entitlement to make

any submission on behalf of the petitioners. Therefore, this

appears to be a serious procedure flaw in the proceeding of the

civil suit and there is nothing to hold that the petitioners were

lawfully represented and that respondent No.2 had a lawful

authority to give consent for compromise on behalf of the
Page No.5

petitioners. Therefore, the compromise decree drawn on the

basis of the consent on behalf of the minor defendants/

petitioners through the person nominated as guardian by the

plaintiff, who is respondent No.2 and not lawfully appointed by

the Court under Order 32 Rule 3 of C.P.C.. Therefore, the

impugned award and decree of Lok Adalat on the basis of the

said compromise is unlawful, therefore, unsustainable.

10. Hence the petition is allowed. The impugned award of National

Lok Adalat, passed in Civil Suit No.38-A/2016 on 08.07.2016 is

set-aside. However, the Civil Suit No.38-A/2016 is restored to the

stage prior to the date of compromise that took place in Lok

Adalat, which may be prosecuted by the respondent No.1 after

following the procedure as provided under the law.

Sd/-

(Rajendra Chandra Singh Samant)
Judge

Balram

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