Reading of the Rule 11 of Order 32 of the Code of Civil Procedure 1908 (“CPC”) leaves little room to speculate as to what a Court is to do if the guardian ad litem appointed by it does not do his duty. As per the said Rule, where the guardian for the suit does not do his duty, the Court is to remove him and appoint a new guardian in his place. The failure of a guardian ad litem to appear in Court to defend the minor is by itself a clear proof of the fact that he has failed to do his duty of protecting the interests of the minor. The Court, in such circumstance, must act in accordance with Rule 11 of Order 32 of the CPC, remove that guardian, and appoint a new guardian in his place, for the protection of the interests of the minor.
The provisions of Order 32 of the CPC, which advance the mandate of Article 25(3) of the Constitution, are to be interpreted and applied with a dynamic and progressive approach to achieve the object for which they have been made, that is, the protection of the rights and interests of the minors. The Courts are to realize that a minor litigant is considered to be under their protection, and primarily it is their duty to watch over his interests and ensure that he is duly represented and defended in the proceedings before them. That is why, despite appointment of a guardian ad litem, no agreement or compromise can be entered into on behalf of the minor by that guardian without leave of the Court. The Court is to see vigilantly the conduct of the guardian ad litem in representing and defending the minor, and to remove him if he fails to do his duty by acting in a manner that is detrimental to the interests of the minor. Where there is no other person fit and willing to act as guardian for the minor, the Court is to appoint any of its officers to be such a guardian. Order 32 of the CPC, thus, visualizes no such occasion where a minor defendant can be proceeded against ex parte.
Pre-emption Cases/. C.A.263/2014
Muhammad Amjad Khan Afridi & others v. Shad Muhammad & others
Mr. Justice Syed Mansoor Ali Shah
17-11-2021
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