IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 BEFORE THE HON’BLE MR.JUSTICE KRISHNA S. DIXIT WRIT PETITION NO.27087 OF 2019 (GM-CPC) Between Sri B.C.Kotresh S/o.Late Channabasappa Aged about 37 years R/at Elebethur Village Davanagere Taluk & District-577 001 ... Petitioner (By Sri Santhosh R.Nelkudri, Advocate) And 1. Sri Muniyappa S/o.Late Channabasappa Aged about 33 years Since deaf and dumb by birth Represented through wife and Guardian Pavithra R/at Elebethur Village Davangere Taluk & District-577 001 2. Smt.Pavithra W/o.Muniyappa Aged about 31 years R/at Elebethur Village Davangere Taluk & District-577 001 ... Respondents This Writ Petition is filed under Article 227 of Constitution of India praying to quash the impugned order dated 07.06.2019 (Annexure-F) in O.S.No.218/2018 on the file of the Principal Senior Civil Judge and CJM, Davangere on I.A.No.IV and etc.
This Writ Petition coming on for Preliminary Hearing this day, the court made the following:
ORDER Petitioner being the first defendant in a partition suit filed by the respondents herein in O.S.No.218/2018 is knocking at the doors of writ court for laying a challenge to the order dated 07.06.2019, a copy whereof is at Annexure-F, whereby learned Principal Sr. Civil Judge, Davanagere having allowed 2nd respondent’s I.A.No.IV filed under Order XXXII Rule 15 of CPC 1908 has appointed her as the guardian ad litem for the 1st respondent who is none other than her husband.
2. Learned counsel for the petitioner vehemently contends that it is a settled legal position of law that a guardian ad litem cannot be accounted merely for an askance; there is absolutely no enquiry held for making such appointment and therefore the impugned order is liable to be revalidated since it violates the pitch and substance of Order XXXII Rule 15.
3. Having heard the learned counsel for the petitioner and having perused the petition papers, this court declines to interfere in the matter because:
(a) under Order XXXII Rule 15 Court is empowered to appoint a guardian ad litem in the event a party to the suit is of unsound mind or is incapable of protecting his interest when suing or being sued by reason of any mental infirmity as held by the Apex Court in the case of KASTURI BAI vs. ANGOORI CHAUDHARY, AIR 2003 SC 1773; it is true that court would not appoint a guardian ad litem merely because such appointment would cause no prejudice to other party or that merely because a party prays for that; in the present case the court below having made some enquiry, has made this appointment on the basis of the medical records and the Government sanction order for payment of disability pension;
(b) the 1st respondent is none other than the husband of the 2nd respondent; her version that the 1st respondent is a differently abled person made on oath, is not disputed by the petitioner; the court below having considered all aspects of the matter has formed an opinion that the 1st respondent being dumb & deaf by birth is not in a position to take any decision in respect of the joint family properties and therefore the 2nd respondent being his wife is the right person to be his guardian ad litem; this order has not caused any prejudice to the petitioner, even otherwise also; and, (c) It has been the consistent view of the Apex Court that a mere non-compliance with even a mandatory provision of law does not give a choate cause of action for invoking the writ jurisdiction under Article 227 of the Constitution of India in the absence of demonstrable prejudice; the case of the petitioner squarely falls within this proposition.
In the above circumstances, the Writ Petition is rejected in limine.
No costs.
Sd/- JUDGE KA