1979 PLP 738 (CLC)

2. The facts of the case are that respondents Nos. I to 9 filed a suit for the possession of land measuring 51 kanals 10 marlas situate in Chak Jagna; Tehsil and District Gujranwala by way of the exercise of the right of pre-emption. Respondents Nos. 10 to - 17 and the present petitioner were the defendants before the learned trial Court. Defendants Nos. 2 to 4 were minors (now respondents Nos, 10. 11 and 12). As the plaint showed respondents Nos. 10 and 11 as minors, therefore, there was an application under Order XXXII, rule 3, C. P. C. for the appointment of a guardian ad litem. The petitioner being the father of the minors as well as one of the defendants, was appointed as guardian ad litem vide order of the learned trial Court dated 6-3-1974. The petitioner on 29-5-1979 moved an application to the trial Court and prayed that he wished to retire as guardian of the minors/respondents. According to the petitioner the learned trial Court on the same day without issuing notice to the plaintiffs-respondents dismissed the same vide his order dated 29-5-1979 which is impugned here. The learned trial Court has observed that the application did not disclose any sufficient cause for permitting the petitioner to retire as guardian ad litem and that the application has been given only with a view to cause delay in the proceedings.

3. I asked the learned counsel as to why the petitioner intends to retire and to which the learned counsel has pointed out that he is not in a position to perform his duties as such. It was further stated that the petitioner intended to retire as it would be appropriate that there should be another counsel representing the minors as presently one counsel represents the petitioner as well as the minor defendants. The sufficiency of the cause shall be dealt with at the appropriate stage. I would like to firstly deal with the legal contention raised by the learned counsel. The learned counsel has contended that the provisions of Order XXXII, rule 11, C. P. C. are mandatory and whenever an application is made by a quardian ad litem for retirement, the trial Court is bound to grant permission and appoint a new guardian ad litem for the minor defendants in his place. In support of his contention he has cited some observations from the notes on unreported cases reported as Sardar Singh v. Kaser Bai (A I R 1955 N U C Note 3021) : "The Court is under a bounden duty to appoint another person as guardian ad litem of the minor if the guardian already appointed does not wish to remain as the guardian of the minor." It would be appropriate to quote relevant rule for the sake of conve nience :- Rule 11, C. P. C.-Where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit."

4. In the first instance it would be appreciated that there are three situations contemplated for invoking .the provisions of Order XXXII, rule 11, C. P. C.- (i) Where the guardian in the suit desires to retire ; (ii) where the quardian does not do his duty ; and (iii) whether other sufficient ground is made to appear. In the present case the case is covered under situation No. (i) above and the Court has not permitted such guardian to retire. In respect of the other two conditions the word "removal" has been used with we are not con cerned in the present case. The learned counsel argued that the word "may" here should be interpreted as "shall". I do not agree with the proposition A because here the word "may" has not been used as "shall" as it was no the intention of the Legislature to make the provisions mandatory. If the provisions are treated as mandatory, no suit can be allowed to progress in which some of the minors are defendants. I am supported in my view by a Division Bench of Allahabad High Court in Om Prakash and another v. Pt. Radhey Shyant Kathawachak (A I R 1945 All. 55) :- "... ....Under Order XXXII, rule 11, C. P. C. no guardian of a minor appointed by Court who has accepted the guardianship has a right to withdraw from guardianship at his sweet-will and pleasure without the permission of the Court and the Court may permit such guardian to retire if it so pleases, or if a guardian does not do his duty, the Court may remove him from such guardianship. It is true that minors are under the special protection of the Court and the Court has to safeguard their interest and if the Court is satisfied that the guardian is not doing his duty the Court may remove such guardian and appoint another..." It was also argued by the learned counsel that in case the petitioner is not permitted to retire and does not perform his duties efficiently, serious consequences would flow and the petitioner may be held liable by the minors after attaining majority for damages. The argument has no force as in case the petitioner does not perform his duties diligently, the Court has the power to remove him under the situation contemplated at No. (ii) or No. (iii) above. The present case relates to a suit for permission in which the interest of the minor is identical with the petitioner, he being his father. As to the point that there should be a separate representation of the minors, the petitioner can even now engage a counsel on their behalf and that does not present any difficulty. In any case as regard the sufficiency of the cause the satisfaction required is that of the trial Court and being discretionary can only be interfered in the exercise of the revisional ,jurisdiction if it is shown to be arbitrary, capricious or fanciful. The learned trial Court had taken into consideration all the necessary facts, In the circumstances I do not find any fault in the order of the learned trial Court. This petition has no force and is dismissed in limine. M. A. K. Petition. dismissed.