No Provision In CPC Which Enables Court To Appoint Guardian For A Missing Party: Delhi High Court

The Delhi High Court has observed that there is no provision in the Code of Civil Procedure which enables the court to appoint a guardian for a party before it which is missing.

Justice C Hari Shankar added that Order XXXII Rule 15 of the Code envisages appointment of guardians only to protect the interests of persons who are adjudged to be of unsound mind or are found, on enquiry by the Court, to be incapable of prosecuting their case by reason of mental infirmity. The provision cannot be applied in case a party is missing.

The petitioner had initially filed an application being for appointment of a guardian of the appellant, Rakesh Kumar Sharma. 

The court had, on 26th July 2022, pointed out to the Counsel for the applicant that there was no provision in the CPC to appoint a guardian for an appellant who was missing.

On 3rd August 2022, an identical application was filed by the appellant, invoking Order XXXII Rule 15 of the CPC and the said application was rejected.

An application was then filed seeking review of an order dated 3rd August 2022.

Noting that there was no error of fact or of law in the order dated 3rd August 2022, the Court observed:

"Indeed, if the appellant is missing, the very maintainability of the appeal would be highly debatable, which is what was also noted in the order dated 26th July 2022. It was for this reason that, on 3rd August 2022, when an identical application was filed by the appellant, invoking, for the said purpose, Order XXXII Rule 15 of the CPC, the application was rejected."

Further observing that the situation envisaged under Order XXXII Rule 15 of CPC did not apply in the case, the Court said:

"This Court is unaware of any provision in the CPC, which enables the court to appoint a guardian for an appellant who is missing."

The Court thus dismissed the review application.

The appeal has now been listed on 26th September wherein the Counsel for the appellant would address arguments on maintainability of the appeal, owing to the fact that the appellant was missing.

Case Title: RAKESH KUMAR SHARMA v. MOTHER DAIRY FRUIT & VEGETABLES PVT LTD

Citation: 2022 LiveLaw (Del) 861

Click Here To Read Order