Vivek Kumar Birla, J.—Heard learned counsel for the appellant and have perused the record.
2. The present appeal has been filed under Order 43, Rule 1 (U) of the Code of Civil Procedure (hereinafter referred to as the ''CPC'') challenging the order passed by the lower appellate Court dated 29.10.2015 whereby judgement and decree dated 29.3.2013 passed by the Civil Judge (Junior Division), Kasya, Kushi Nagar rejecting the plaint of Original Suit No. 999 of 1997 (Musmmat Imarata v. Ravindra Singh) under the provisions of Order 7, Rule 11 (d) of the CPC was set aside and suit was restored to its original number.
3. The facts relevant for the present controversy are that Musmmat Imarata (now deceased) filed a suit being Original Suit No. 999 of 1997 for cancellation of Will dated 21.9.1992 and for decree of permanent prohibitory injunction against the present appellant Ravindra Singh who was stated to be 17 years of age at the time of filing of the suit. In paragraph 9 of the plaint, it was stated that the age of the present appellant herein was 13 years 10 months and 9 days on the date of execution of the Will and on the date of filing of the suit, he was 17 years 4 months and 15 days old. The appellant herein filed an application dated 24.8.2012 (paper no. 91-C) before the trial Court that at the time of filing of suit he was aged about 17 years and admittedly, as per the plain allegation, he was 17 years and thus minor, and that no application under Order 32, Rule 3 CPC has been filed by the plaintiff, therefore, the suit is not maintainable and plaint is liable to be rejected.
4. This application was allowed by the trial court vide order dated 29.3.2013 and the plaint was rejected under Order 7, Rule 11 (d) of CPC on the ground that as per the plain allegations the appellant was 17 years of age and as such, the suit was barred by law. The aforesaid judgement and decree was challenged by the plaintiff before the lower appellate Court by filing an appeal being Civil Appeal No. 0100020 of 2013, which was allowed by the lower appellate Court on the ground that the defendant (appellant herein) had not filed any affidavit in support of his application (paper no. 91-C) and had not produced any evidence whereas under Order 32, Rule 3 (1) CPC the Court must satisfy about the minority of the defendant and this effort was not done by the trial Court, and therefore, the judgement and decree dated 29.3.2013 was set aside and the suit was restored to its original number. This appellate judgement is under challenge before this Court.
5. Learned counsel for the appellant submits that a new ground was carved out by the lower appellate Court that the application (paper no. 91-C) was not supported by any affidavit whereas minority of the appellant was admitted to the plaintiff as per paragraph 9 of the plaint and as such admission being the best piece of evidence there was no further requirement and as such affidavit in support of application was not required. He further submits that even a formal application is not required for rejecting a plaint under Order 7, Rule 11 (d) CPC as it is the duty of the Court to see as to whether suit is barred by law or not or at least once such objection is raised.
6. For deciding the issue by this Court, relevant provisions of the CPC that are to be considered are the Order 7, Rule 11 (D) and Order 32, Rule 3 CPC, which are quoted as under:
"Order 7, Rule 11 . Rejection of plaint-- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, failed to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9:
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature for correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.
Order 32, Rule 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.
(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has not interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
(4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.
(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.
(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court any proceedings in the execution of a decree."
7. The plaint was rejected by the trial Court on the ground that as admitted in the plaint the appellant herein was minor and, therefore, the plaint was liable to be rejected.
8. The question involved in the present appeal as to whether a suit against the minor is barred by any law so as to apply the law for rejection of plaint as provided under Order 7, Rule 11 (d) CPC, which provides that the plaint can be rejected where the suit is to be barred by any law.
9. A perusal of Order 32, Rule 3 clearly indicates that a suit can be filed against the minor and if the Court is satisfied that where the minor is defendant, shall appoint a person to be guardian for the suit for such minor. Sub-rule 2 of Order 32, Rule 3 provides that an order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. Sub-rule 3 of Order 32, Rule 3 provides that for appointment of guardian, an application can be made either on behalf of the minor or by the plaintiff and order can be obtained for appointment.
10. This provision clearly indicates that the suit against the minor is not barred and even a minor can apply for appointment of guardian who may pursue the suit before the Court on his behalf. The provision of sub-rule 4-A of Order 32, Rule 3 CPC may also be taken into account, which clearly provides that the Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also. This clearly indicates that the suit against the minor by itself is not barred but the provisions of Order 32, Rule 3 CPC provides the manner in which the suit will proceed against the minor after the Court is satisfied about the minority and thereafter the steps to appoint guardian either on behalf of the plaintiff or even on behalf of the minor will proceed.
11. Therefore, in my view, the suit against the minor could not have been dismissed under the provision of Order 7, Rule 11 (d) CPC as the suit itself was not barred by any law but the provisions of Order 32, Rule 3 CPC provides the manner in which the suit can proceed against the minor.
12. In such view of the matter, rejection of plaint under Order 7, Rule 11 (D) CPC by the trial Court was illegal and the same was rightly set aside by the lower appellate Court. The reasons assigned for setting aside the judgement and decree of the trial Court that no affidavit in support of application (paper no. 91-C) was filed, has no relevance in view of law as applicable in the present case as the plaint could not have been rejected. It is, therefore, not necessary to go into the reasoning given by the lower appellate Court for setting aside the judgement and decree of the trial Court dated 29.3.2013.
13. The present appeal lacks merit and is dismissed accordingly.
