Punjab-Haryana High Court
Baldev Singh And Ors. vs Sukhdev Singh And Ors. on 17 March, 2006
Equivalent citations: (2006)143PLR680
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. Plaintiffs Baldev Singh, Hardev Singh and Sher Singh have filed the instant appeal against the order dated 14.4.2003 passed Additional District Judge, Sangrur whereby after setting aside the judgment and decree of the trial Court, the mater has been remanded back for denovo trial after complying with the mandatory provisions of Order 32 Rule 3 C.P.C. governing the appointment of a guardian for the minor defendants.
2. In this case, a suit for possession, declaration and permanent injunction was filed by the plaintiffs-appellants challenging the consent decree dated 17.10.1992 passed in Civil Suit No. 672 titled as "Sukhdev Singh and Anr. v. Chinto," which was suffered by Smt. Chinto in favour of defendant No. 1 Sukhdev Singh and Balwinder Singh, the predecessor of defendants No. 2 to 5, and mutation sanctioned on the basis of the said decree as well as the sale deed executed by Balwinder Singh subsequently. Since Balwinder Singh had died before institution of the suit, therefore, his legal representatives i.e. Shiam Kaur, mother of Balwinder Singh, Amarjit Kaur, his widow, Rinku, his minor son and Rajo, his minor daughter, were impleaded as parties. The aforesaid two minors i.e. defendants No. 4 and 5 were impleaded under the guardianship of their mother Amarjit Kaur. It is the case of the plaintiffs that defendant No. 1 Sukhdev Singh and aforesaid Baldev Singh were not related to Smt. Chinto and the said decree was obtained by fraud and impersonation.
3. Before the trial Court though the minor defendants were sued through their mother being natural guardian but admittedly neither any application for appointment of the guardian under Order 32 Rule 3 C.P.C. was filed nor the particulars of all the possible guardians and the requisite affidavit under Order 32 Sub Rules (3) and (4) C.P.C. were given/filed. Even certificate to the effect as to who were the persons who had no interest in the subject matter adverse to the interest of the minors, was not filed. Even no formal order for appointment of the guardian was passed. The trial Court decrped the suit of the plaintiffs, but the first Appellate Court while following the Division Bench decision of this Court in Gurpreet Singh v. Chatterbhuj Goel , set aside the judgment of the trial Court and remanded the matter for de-novo trial, while observing as under:
The lower court file shows that there is no affidavit filed by the plaintiffs as required under Order 32 C.P.C. No application for the appointment of a guardian in respect of minor defendants had been moved by the plaintiffs. No certificate to the effect as to who were the persons had no interest in the subject matter, adverse to the interest of minor etc.was filed. It has certainly caused prejudice to the minor defendants Rinku and Rajo against whom the decree of declaration, permanent injunction and possession has been passed by the learned lower court. In Gurpreet Singh vs. Chatur Bhaj Goyal , a Division Bench of the Hon'ble Punjab and Haryana High Court has held where in a suit against the minor application under Rule 3 of Order 32 CPC for the appointment of guardian was not made by the plaintiffs, the person who acted on behalf of the minor, acted without authority prejudice to the minor is presumed. The presumption as to consent under Rule 4(3), cannot arise. In that case the minor's father who acted on behalf of minor defendant, was held to have acted without authority. No law contrary to the one cited by the applicants, has been shown by the respondents. The application dated 20.3.2003 is consequently accepted. The lower court findings on all the issues are set aside and the case is remanded back for fresh decision on all the issues after complying with the mandatory provisions of Order 32 Rule 3 C.P.C. governing the appointment of a guardian for the minor defendants. The trial before the lower court shall commence denovo and the plaintiffs shall move the required application under Order 32 Rule 3 C.P.C. if so advised.
4. Counsel for the appellants while relying upon the Full Bench decision of this Court in Amrik Singh etc. v. Karnail Singh, etc. (1974)76 P.L.R. 744, submitted that the mother of minor defendants No. 4 and 5 through whom both the minors were sued, is having no adverse interest against the minors. Actually she and other defendants have hotly contested the suit, therefore, the minors were effectively represented by their co-defendants, therefore, no prejudice was caused or suffered by him. As such, the first Appellate Court was not justified in setting aside the judgment and decree of the trial Court and remanding the case for denovo trial. He further submitted that all illegalities would not render a decision nullity. If an illegality results into no injustice, then merely because the procedural illegality was committed during the trial, the decision given by the trial Court should not be considered as nullity. By referring to the provisions of Order 32 Rule 3A C.P.C, the learned Counsel for the appellants submitted that no decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor, but such decree can be set aside if by reason of such adverse interest of the guardian or next friend, a prejudice has been caused to the interest of the minor. He also submitted that in this case no prejudice has been caused to the minors a co-defendants, including the mother of the minors, have hotly contested the suit. Learned counsel also relied upon the decision of the Hon'ble Apex Court in Smt. Kameshwari Devi @ Kaleshwari Devi and Ors. v. Smt. Barhani and Ors. J.T. 1997(3) S.C. 403, wherein it was held that if the defence was common to all the defendants in earlier suit, including that of the minor, and the estate of the minor was sufficiently represented by appointment of the court guardian, the decree is binding on the minor.
5. On the other hand, learned Counsel for the respondents submitted that in the facts and circumstances of the cases, the first Appellate Court was right in following the Division Bench decision of this Court in Gurpreet Singh's case (supra), as on facts the said decision is squarely applicable in this case. He submitted that in that case the decision of the Full Bench in Amrik Singh's case (supra) was considered and not relied upon being distinguishable.
6. After hearing the counsel for the parties and going through the impugned order, I do not find any merit in the instant appeal. The Division Bench of this Court in Gurpreet Singh's case (supra) after considering the provisions of Order 32 Rule 3 CPC with amendments made by the State of Punjab has held as under:
It will be seen from the provisions of 0rder 32, Rule 3, Civil Procedure Code, that the legislature had advisedly provided special protection for minors and persons of unsound mind as they being unable to look after their own interest, require special care. Rule 3 specifically provides that for the appointment of a guardian, an application has to be made and such application must be supported by an affidavit giving the details mentioned in Sub-rule (3). Sub-rule (4) of Rule 3 provides that no order shall be made on the application filed under Rule 3 unless a notice has been served on the guardian, if any, and where there is no such guardian, on the father or on mother or on various other persons mentioned in Sub-rule (4) of Rule 3. Sub-rule (3) of Rule 4 stipulates that no person is to be appointed guardian without his consent in writing (and the underlined portion which is an amendment made by the State of Punjab) provides that the Court may presume such consent unless it is expressly refused. The inflexible rule therefore, is that it is incumbent on the plaintiff suing a minor defendant to file an application in Court for the appointment of a guardian and the subsequent steps that are to be taken are within the purview or province of the Court. We are of the view that if an application is not made as provided by 0rder 32, Rule 3 any guardian who may have acted for the minor, would not be clothed with the requisite authority to act as such. The consent that can be presumed is only if an application has been made, and notice issued to the proposed guardian.
7. In the said judgment, it was held that when an application has not been made as required under Order 32 Rule 3 CPC, no notice issued to the proposed guardian as required by Sub-rule (4) of Rule 3 nor the consent in writing taken from the proposed guardian under Sub-rule (3) of Rule 4, the mandatory provisions of Order 32, had not been complied. It has been further held that non-compliance with the mandatory provisions of Order 32 and 4 CPC makes the decree void and must also presume to have caused prejudice to the appellant. In the said Division Bench decision, the Full Bench judgment in Amrik Singh's case (supra) has not been relied upon as the same is distinguishable on facts. In the Full Bench judgment, an application was filed for appointment of one Satnam Singh as guardian of the minors. In the said application, the names of the proposed guardians, including the brother, father and mother of the minors were also mentioned. Satnam Singh refused to act as guardian. The notices issued to the other guardians were not served, but the Court appointed one Advocate as a guardian of the minor defendants. In that situation, the Full Bench came to the conclusion that mere illegality in not properly following the procedure for appointment of a guardian will not cause any prejudice to the minors as they were being effectively represented by co-defendants. The facts of the present case are entirely different. Here, neither an application for appointment of the guardian was filed nor the names of the proposed guardians were given nor any notice was issued and their consent was obtained and formal order for appointment of guardian was passed. The decision of the Full Bench itself says that in fact each case must be settled on its own facts and it would not be appropriate to lay down any general rule. Therefore, the observations made in the said decision have necessarily to be confined to the facts of that particular case. Since facts of the instant case are squarely covered by the facts of the Division Bench judgment of this Court in Gurpreet Singh's case (supra), in my opinion on the similar reasoning the decision of the Hon'ble Apex Court in Smt. Kameshwari Devi's case (supra) is also not applicable because in that case a guardian was duly appointed by the Court but he did not file separate written statement for minor. In that situation, it was observed that the defence was common to all the defendants in the suit including the minor, therefore, by non-filing the separate written statement, no prejudice was caused and the estate of the minor was properly safeguarded by appointing the guardian and such decree is binding on the minor. Thus, 1 do not find any illegality or infirmity in the impugned order.
8. Dismissed.