109-NLR-NLR-V-73-A.-THIRUNAVAKARASU-Petitioner-and-K.-THURAIRATNAM-and-2-others-Respondent.pdf
570
WIJA YATILAKE, J.—Thirunavalarasu v. Thurairatnam
1970Present: Wijayatilake, J.
A. THIRUNAVAKARASU, Petitioner, and K. THURAIRATNAM <and2 others, RespondentsElection Petition No. 5 op 1970—Electoral District No. 82(Point Pedro)
Parliamentary election—Election petition—One of the respondents a minor—Require-ment of appointment of a guardian-ad-litem over him—Ceylon {ParliamentaryElections) Order in Council {Cap. 381), as amended by Act No. 9 of 1970,ss. 78 (3). 80A (I) (6), 83 (2), SO.
Although there is no specific provision in the Coylon (Parliamentary Elections)Order in Council for the appointment'of a guardian-ad-litem when a minor ismade a respondent to an election petition, it is the duty of the petitioner totake steps to have a guardian-ad-litem appointed over tho minor when the factof minority is brought to the notice of the Court at any stage in the proceedings.
OrDER made in respect of Election Petition No. 5 of 1970—ElectoralDistrict No. 82 (Point Pedro).
G. Molilal Nehru, for the petitioner. -^
N. Satyendra, for the 1st respondent.. — ■
' S. O. Chandrahasan, for the 2nd respondent.
October 28,1970.'v WiJAYAraliKE^J.-—
This raises an important question'of procedure under our Election Law.This is an applicationby the'petitioner to appoint the. 3rd respondent asguardian-ad-litem oyer the 2nd respondent who happens to be a minor.
WIJAY ATI LAKE. J.—Thirunavokarasu r. Thurairalnam
571
The respondents ore present in Court. The minor is said to have beenbora in July, 195S. Mr. Satyendra submits that in proceedings of thisnature there is no precedent for the appointment of a guardian-ad-litemover a minor respondent. He has drawn my attention to Section 86 ofthe Ceylon (Parliamentary Elections) Order in Council which provides forthe procedure and practice in England to be followed where there is alacuna. According to our procedure at Section 80A (6) any other candi-date or persons against whom allegations of any corrupt or illegal practiceare made in the petition have to be joined as respondents. Mr. Satyendrasubmits that under the English Eaw, there is no such requirement. InIndia, too, the procedure would appear to be the same as in England.However, in view of the fact that our (Parliamentary Elections) Order inCouncil has made special provision for the addition of respondents thequestion docs arise whether a minor who has been so joined should berepresented by a guardian-ad-litcm. Mr. Satyendra has referred me toSection 78 (3) which, he submits, does not provide for an Election Judgeto make an appointment of this nature. On the other hand, underthe Common Law it is necessary that every minor, who is a party to aproceeding in Cc/urt, should be represented by a guardian-ad-litcm. Mr.Satyendra further submits that in any event the present application isoutof time in view ofScetion83 (2) ofthcCeylon (Parliamentary Elect ions)Order in Council. He accordingly moves that the instant application ofthe petitioner be dismissed and that the main petition of the petitioneralso be dismissed.
Mr. Chandrahasan. learned Counsel for the 2nd respondent submits thatthe 2nd respondent being a minor, under the Roman Dutch Law, whichis our Common Law, the petitioner would not be able to join a minoror to proceed against a minor without a due appointment of a guardian-ad litem ; and that the petitioner lias failed to do so within the time limitof 21 days provided under the Cej lon (Parliamentaiy Elections) Order inCouncil. He accordingly supports Mr. Satyendra. He further submitsthat if the Court is so disposed to appoint a guardian-ad-litcm, the 3rdrespondent is not a fit and suitable person to be so appointed as therelations between the two are adverse as set out in the affidavit filed.
.Mr. Nehru, Counsel for the petitioner submits that in the’ absence ofany statutory provisions, he has, out of an abundance of caution, takenthe step to have a guardian-nd-litem appointed, and he leaves it to Courtto make such an appointment if it deems necessary. He has no objectionto any other suitable party being appointed as a guardian-ad-litcm if theminor so consents.
In my view, as then- isa lacuna in the Ceylon (Parliamentary Elections)Order in Council iu regard to the appointment of a guardian-ad-litcm,it is the duty of this Court to sec that the minor, who has been added as. a party, is not in any way prejudiced by the absence of a guardian-ad-|itern to watch her interests. Although the petitioner could have madethis application simultaneously with the petition or within the period of
572
Pattilhamby v. Saviriathurmna
21 days as contemplated under Section S3 (2), 1 do not think that thepetitioner should be penalised as there is a lacuna in our Order in Counciland this Court is of the view that a minor respondent should under ourCommon Law be represented by a guardian-ad-litem. I would accord-ingly hold that although there is no specific provision in the Ceylon(Parliamentary Elections) Order in Council, where a minor is made arespondent to a petition, it is the duty of the petitioner to take steps tohave a guardian-ad-litem appointed when the fact of minority is broughtto the,notice of Court at any stage in the proceedings. -An order forcosts should compensate for any inconvenience caused to the respondentin a fit case.
In view of the submissions made by learned Counsel for the 2ndrespondent in regard to the suitability of the proposed guardian-ad-litemand as the Counsel for the petitioner has no objection, I refuse theapplication of the appointment of the 3rd respondent.
Counsel for the 2nd respondent st a tes t hat there is an uncle of the minor,one Ratnnm Poopalakrishnan, who is present in Court, who is a fit andsuitable person to be so appointed. I question both the minor and thesaid Poopalakrishnan, and they consent. I accordingly appoint the saidRatnam Poopalakrishnan of Mather’s Lane, Manipay, as guardian-ad-litem over the minor.
As tins matter has come up for considerat ion for the first time I do notpropose to make any order in regard to costs of the instant inquiry.
Ghiardian-ad-litem over the 2nd respondent appointed.