Abdul Ahad Bhat and Another vs Mst. Tabasum Manzoor

Hasnain Massodi, J.—Short controversy involved in this Revision Petition relates to maintainability of the application for amendment of a

petition u/s 25 of Guardian and Wards Act 1977 (1920 AD). The controversy arises in the following circumstances:

The Petitioners herein are Paternal Grand Parents of Master Noman Manzoor and Respondent is mother of the minor. The Petitioners, after sad

demise of Shri Manzoor Ahmad Bhat - father of Master Noman Manzoor on 8-1-2008, filed a petition u/s 25 of Guardian and Wards Act for

custody of Shri Noman Manzoor. The parties settled the matter amicably and in terms of compromise the Petitioners, were appointed as

Guardians of person and property of the minor. The compromise was recorded by learned 1st Additional District Judge Srinagar and in terms of

compromise on 25-3-2008, the Guardianship Certificate for person and property of Shri Noman Manzoor son of Late Manzoor Ahmad Bhat

resident of Solina Payeen, Srinagar, aged 15 months was granted in favour of the Petitioners. The Respondents herein aggrieved of the order filed

a Civil First Miscellaneous Appeal before this Court. The Appeal was allowed on 28-7-2009 and the order dated 25-3-2008, appointing the

Petitioners as Guardian of person and property of the minor was set aside and the matter remanded to the Court of 1st Additional District Judge

Srinagar for its disposal in accordance with provisions of Guardians and Wards Act 1977 (1920 AD). This Court held that appointment of

Guardian fell beyond scope of petition u/s 25 of the Guardians and Wards Act and the Court below had no jurisdiction to appoint the Guardian of

person and property of the minor, even on compromise entered into by the parties and with the consent of the parties. It was observed:

...no amount of consent of the parties can vest jurisdiction in a Court to award the relief which a suitor had not sought for.

Jurisdiction of a Court to grant relief to a suitor depends on the pleadings, made by him in this behalf, and in view of the Respondents' limited

pleadings in the present case, seeking only custody of the minor and nothing beyond that, the learned 1st Additional District Judge, had thus no

jurisdictional competence to direct appointment of the Respondents as minor's guardian.

The Petitioners, after the case was received by the Court of 1st Additional District Judge, Srinagar, filed an application for amendment of the

petition u/s 25 of the Act. The Petitioners proposed to amend the petition u/s 25 of the Act and through amendment incorporate prayer for their

appointment as Guardian of the person and property of the minor. The Petitioners in effect intended to convert the petition u/s 25 of the Act into

one u/s 7 of the Act. The Trial Court vide order dated 11-11-2009 rejected the prayer for amendment of the petition. The order dated 11-11-

2009 is impugned in the present Revision Petition.

Heard and Considered,

The trial Court, while declining the prayer for amendment of the petition u/s 25 of the Act, appears to have been influenced by the following

considerations:

That the proposed amendment was likely to change the nature of the case and help the Petitioners to set up a new case.

That there was no provision under the Guardian and Wards Act for amendment of the pleadings as the Guardian and Wards Act was a self

contained Code, application for amendment of the petition u/s 25 of the Guardian and Wards Act laid by the Petitioners was not maintainable.

There can be no disagreement with the view taken by the learned Trial Court that the amendment cannot be made as a camouflage to introduce

and set up a new case as against one already put forth before the Court. The expression ""amendment"" itself implies that what is sought to be

amended, is to remain in its essential features intact and the amendment is only proposed to elaborate, explain or modify the pleadings before the

Court without violating the fundamental features of the pleading, sought to be amended. It is well settled law that the amendment cannot be used as

a tool to introduce a new cause of action, set up a new case or withdraw an admission unless of course the effort is only to explain an admission

made, again the amendment must not appear to have been based on mala fide considerations, to prolong agony of the opposite party or adversary

in the proceedings. Having said so, let us have a look at Section 25 and 7 of Guardian and Wards Act. Section 25 of the Guardian and Wards Act

deals with the situation where the ward leaves or is removed from the custody of the guardian of his person and the Court is of the opinion that it

will be for the welfare of the ward to return to the Guardian, custody of the ward. In such a case the Court is empowered to make an order for his

return and the Court is even clothe with the power to cause the ward to be arrested and to be delivered into custody of the Guardian. It is

important to note that the expression ""Guardian"" u/s 25, having regard to definition of the guardian in Section 4(2), does not necessarily mean

natural guardian or the guardian appointed by the Court. It includes a person, who is having care of a person of minor or of his property, or both of

his person and property. Section 7 visualizes completely different situation. It empowers the Court to make an order regarding guardianship of

person and/or property of a minor. In terms of Section 7 of the Act, where the Court is satisfied, it is for the welfare of a minor that an order

should be made, appointing guardian of his person and property or both or declaring a person to be such guardian. The Court may make an Order

accordingly. The case set up by a person u/s 25 of the Act, to seek return of a minor, who is left or removed from his custody, is to be significantly

and markedly different from the case to be set up by a person, invoking jurisdiction of Court u/s 7 of the Act and praying for his appointment as

guardian of a person or property of a minor and so is the cause of action for Petitioners under said provisions. The consequence that flow out of an

order passed u/s 25 of the Act and order passed u/s 7 likewise fall under two different realms. What is required to be proved by a person, asking

for return of custody of a minor, is different from the standard of proof the Court must look for while making an order u/s 7 of the Act for

appointment of a guardian of person and property of a minor. What is sought to be emphasized, the proceedings u/s 25 and u/s 7 are falling within

the two separate areas and amendment cannot be used as a tool to convert a petition u/s 25 into one u/s 7 of the Act. Such an effort would be

against the basic cannons of law governing amendment of the pleadings. Learned Trial Judge was right in holding that the proposed amendment

would enable the Petitioners to set up a wholly new case different from one previously set up.

However, the view taken by the learned trial Judge that as there was no provision for amendment, the pleadings under Guardian & Wards Act,

there was no scope for amendment of a petition u/s 25 or for that matter any provision of the Act, is erroneous and not tenable. There is no scope

for any doubt that procedure laid down in CPC is to be followed in proceedings under Guardian and Wards Act. The proceedings under Guardian

and Wards Act are civil proceedings before the Court of Civil jurisdiction. Section 141 of Code lays down that the procedure provided in the

Code in regard to suits shall be followed as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction. Section 4-A of the

Act provides that the High Court may empower any officer to exercise original civil jurisdiction subordinate to District Judge or authorize any

District Court to empower any such officer subordinate to him, to dispose of any proceedings under the Act. Section 10 lays down that the

application u/s 7 shall be signed and verified in a manner as prescribed in CPC for signing and verifying a plaint. Again Section 11 makes it

obligatory for the Court, on receipt of the application for appointment of guardian, to serve the parents and other person(s), mentioned therein, in a

manner directed in Code of Civil Procedure. Section 43(4) of the Act lays down that in case of disobedience to an order made under Sub-section

(1) or Sub-section (2), the order may be enforced in the same manner as an injunction granted under Order XXXIX, Rules 1 and 2 of Code of

Civil Procedure. Section 46 empowers the Court to exercise powers available under CPC to compel the attendance of witness, to give evidence

or produce documents. Section 48 of the Act makes room for a Civil Revision u/s 115 of CPC against an order made under the Act. All these

provisions make it sufficiently clear that the CPC is to be followed in proceedings under the Act. So viewed, either of the parties to the

proceedings under the Act can press into service Order 6, Rule 17 of CPC to amend their respective pleadings.

I am fortified of the view by the law laid down in Shiv Saran Dass Bhagwan Dass Vs. Smt. Satbhirawan Trust, Delhi and Others, wherein the

Court has observed that ""there can be no manner of doubt that the procedure of CPC is to be followed in proceedings under Guardian and Wards

Act,

For the reasons discussed above, the Civil Revision is dismissed. Copy of order along with record be send down. The parties to appear before the

Court below on 20th April 2010.