Bengalilal Kanhiyalal Agarwal vs Gokal Chand Narain Das

Nigam, J.C.

In Civil Suit No. 1 of 1946, Bengali Lal, defendant, was insane and Shri S.N. Jindal, Advocate, was appointed his guardian-ad-litem. Bengali Lal died on 25-11-1948. On 23-12-1948 an application was filed requesting that Sitaram and Sri Ram, minor sons of the deceased be brought on to the record. In - ''Misc. Appeal No. 31 of 1948 (A)'', I am informed this Court set aside the order of the District Judge removing Moolchand Saraogi from the office of the certificated guardian of the two minors and directed that pending proceedings in the Court of the District Judge against Moolchand Saraogi for his removal, the Official Receiver was to continue to act as the certificated guardian of the two minors. In any case on 23-12-1948 notices were directed to be issued to the two minors and the Official Receiver and Moolchand Saraogi. On 10-1-1949 and 10-3-1949 it was found that one of the minors Sitaram had not been served. Sri Ram had been served and the Official Receiver was present. Moolchand Saraogi was not present.

On 21-4-1949 it was found that the minors hat been served. Then it was not directed that (sic) two minors be brought on to the record as (sic) representatives of Bengalilal and without (sic) any fresh order appointing the Official Receiver their guardian-ad-litem, the learned Senior (sic) ordinate Judge directed that the minor''s witted statement be filed by 15-5-1949 and on that (sic) it was directed that Shri Jindal was to (sic) as counsel for the minors. The case (sic). On 14-8-1952 Sitaram attained majority. He permitted to assume conduct of the defence (sic) 17-9-1952 and has been appointed guardian-ad-(sic) for his younger brother Sri Ram." On (sic) Sitaram filed an application praying the (sic) ceedings after 10-3-1949 should be set aside (sic) the case should start afresh from that stage application was rejected by the learned (sic) Subordinate Judge by his order dated (sic) and he fixed 11-5-1953 for evidence. Against (sic) order Sitaram, on his own behalf and as (sic) dian-ad-litem of Sri Ram, minor, has (sic) in revision. I have heard the learned (sic) for the parties.

In my opinion there has been a (sic) committed in the procedure of the case learned Senior Subordinate Judge should (sic) directed that the two minors be brought on to (sic) record as legal representatives of Bengali Lal ceased, and should have appointed a (sic) look after their interests. It is true that (sic) no actual prejudice has been caused to minors. But I am of opinion that where the caesural error has been brought to the (sic) the trial Court, the error and the mistake be rectified and this rectification should be (sic) even if no actual prejudice has been caused however, see no reason why Sitaram did not in the matter earlier and waited till all (sic) evidence on behalf of the plaintiffs had (sic). He caused an unnecessary delay also unnecessary expense to the opposite (sic) am, therefore, of opinion that his request (sic) be granted, only if he is prepared to pay stantial amount as costs to the opposite, (sic).

Accordingly, I pass a conditional order. Sitaram''s paying the learned counsel for opposite party a sum of Rs. 300/- (rupees (sic) hundred only) within 15 days of today, the (sic) already recorded in the case will (sic) the file but all the witnesses produced on (sic) of the plaintiffs will be recalled (or re-examine on commission) and permitted to be cross-examined by the defendants and re-examined the plaintiffs. Then the defendants'' witnesses ready examined will be permitted to be re-reexamined at defendants'' costs by the plaintiff The parties will also have the right to exam, such other additional witnesses as they may des but the costs of the examination of these additional witnesses will be borne by the parties the selves irrespective of the result of the case. (sic) the costs are paid, then the parties will bear (sic) own costs in this revision application. In (sic) of default in the payment of the costs (sic) directed and no extension of time will be (sic) the revision application will stand dismissed costs.