IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
LPA No.591 of 2009 (O&M)
Date of decision: 13.7.2009
Imran and others
-----Appellants
Vs.
Jakir Hussain and others
Respondents
CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. Adarsh Jain, Advocate for the appellants.
Adarsh Kumar Goel,J.
1. This appeal has been preferred against judgment of
learned Single Judge dated 23.4.2009, allowing the writ petition of
respondent Nos. 1 to 4, against order of Financial Commissioner
dated 25.9.2007, Anenxure P.6 and restoring the order of the
Collector dated 29.1.2002, Annexure P.4.
2. The appellants are heirs of Munshi, who was a tenant
on the land in dispute and was survived by four sons, apart from
the appellants, who are minor sons of pre-deceased Deen Mohd.
and their brother Ayub, who was major. The appellants were
LPA No.591 of 2009(O&M) 2
sued through their brother Ayub, who was major. The parties were
represented through counsel, who made a statement on 29.7.1999
that they will deposit the rent, interest and cost. On 24.4.2001,
direction to make the deposit within 15 days was given with a rider
that on default, order of eviction may be passed. The deposit
having not been made, order of eviction was passed, which was
affirmed on appeal but was set aside in revision and the revisional
order was upheld by the Financial Commissioner.
3. The appellate authority rejected the objection of the
appellants that they being minors, and no formal order of
appointment of guardian having been passed, order against them
was a nullity.
The finding of the Collector is as under:-
“I have heard the arguments of the counsel for the
parties and also perused the file of the case. The
contention of the counsel for the appellants that
provisions of Order 32 Rule 2 have not been
complied with is not correct because the father of
the minor appellants had already died and as per the
Muslim law, mother cannot be appointed as the
guardian. The present suit which has been filed, the
real brother Ayub was appointed as the guardian and
the cutting made in the Vakalatnama were corrected,
is not correct because the Thumb impression of
Ayub had already been affixed on this. The lower
LPA No.591 of 2009(O&M) 3court had passed the order dated 24.4.2001 in the
presence of both the parties. Therefore, the
submission of the counsel for the appellants that
they did not know about the order regarding deposit
of the Batai and order of ejectment cannot be
accepted. While passing the order dated 24.4.2001,
15 days time was given to deposit the amount failing
which the order of ejectment was passed. Till today,
the amount of Batai has not been deposited by the
appellants nor any application for condonation of
delay in filing the appeal has been filed till date.”
4. The Commissioner reversed the above view and held
that in absence of order of appointment of guardian, order of
eviction was a nullity. Same view was taken by the Financial
Commissioner.
5. Respondent Nos. 1 to 4, the landlords preferred a writ
petition, which was heard by a learned Single Judge. The Learned
Single Judge held that apart from the appellants, there were other
contesting parties including their brother and uncles, who had no
interest adverse to the appellants. The appellants were, thus,
effectively represented and no prejudice was caused. Non
compliance of Order 32 Rule 2 CPC, though mandatory, having
not caused any prejudice, the order could not be treated as nullity,
LPA No.591 of 2009(O&M) 4
in view of judgment of Full Bench of this Court in Amrik Singh
and another v. Karnail Singh and others, AIR 1974 P&H 315.
Finally, it was concluded as under:-
“I have considered the rival contentions raised before
me by the counsel. The provisions may be mandatory
and this may require compliance but the aspect of
prejudice as observed by Full Bench in Amrik Singh’s
case (supra) cannot be completely ignored. In other
words, it is to be seen if the non compliance of these
provisions would lead to any prejudice to the case of
the respondents or not. The provisions of Rule 3 seem
to require of a plaintiff that he must move an
application for appointment of a guardian where minor
alone is sued. In fact that was the situation, according
to the counsel for the petitioners, in the case of
Gurpreet Singh (minor) v. Chhatterbhuj Goel, 1991(2)
RLR 460. The facts in the present case are in somewhat
different context. Respondents were minors but were
impleaded through their brother, who was a major. He
had an equal interest to protect for himself as well as
for his minor brothers. Respondents, who were minors
had major brother and other relatives who all were
represented by the same counsel. The case was decided
by the Assistant Collector on the basis of a statement
made by the counsel that they were prepared to deposit
the Batai. It was not a contested case where there was
any need to take stand. The respondents thus would not
have apparently suffered any prejudice on account of
LPA No.591 of 2009(O&M) 5the order passed and now impugned. The ratio of law
laid down by the Full Bench decision of this Court in
the case of Amrik Singh (supra) thus would be attracted
to the facts and circumstances of the present case. Even
if it is assumed that there was non compliance of the
provisions of Order 32 Rule 3, the decision as rendered
cannot be termed as void as observed by the Full bench
in the case of Amrik Singh (supra). Would not it be
sheer injustice to the petitioners to reopen this case
when it was decided on the basis of stand taken by the
respondents but the petitioners are yet to receive either
Batai or possession of this land?
In view of the facts as noticed that the interest of
the minors was fully represented by their own brother,
who did not have any interest adverse to the interest of
the minors. In fact he had the same interest to defend
the case. It cannot be assumed that there was any
prejudice caused to the case of the minors. It can also
be noticed that the minors were effectively represented
before the court and thus the decision will not be void.
The minors thus would not be able to ignore or avoid
the same. The object of Order 32 Rule 3 is to see that
the minor’s interest does not suffer and he is properly
represented in a suit filed against him. I have assured
myself that the minors have not suffered any prejudice
and were properly represented by their brother who had
an identical interest to protect. To an extent, this
requirement of appointing a guardian for minor had
been taken care of by impleading the minors through
LPA No.591 of 2009(O&M) 6their brother. That is why, the court perhaps did not
consider it appropriate to appoint a guardian….”
6. We have heard learned counsel for the appellants and
perused the record.
7. It has not been disputed that apart from the appellants,
their real elder brother and uncles were duly impleaded as parties
being legal heirs of Munshi, the original tenant and they were
represented by a counsel. They did not, in any manner, act to the
detriment of the appellants, in collusion with respondent nos. 1 to
4. They were also equally affected by the order. In these
circumstances, no prejudice has been caused in absence of formal
order of appointment of guardian, as their brother could be their
guardian who was himself a party. The matter is, thus, fully
covered by Full bench judgment of this Court in Amrik Singh
(supra).
8. Learned counsel for the appellants relies upon judgment
of Hon’ble Supreme Court in Ram Chandra Arya v. Man Singh
and another, AIR 1968 SC 954, to submit that in absence of
guardian, decree would be void. In that case, the decree was ex
parte without service of the contesting party, who was a lunatic.
Other judgments relied upon are also on the principle that in
absence of a guardian, the decree would be void. The matter
LPA No.591 of 2009(O&M) 7
having already been considered by Full Bench of this Court in
Amrik Singh (supra) and there being effective representation
through a counsel, the order passed was not be liable to be
interfered with.
9. We, thus, do not find any ground to interfere with the
view taken by the learned Single Judge.
10. The appeal is dismissed.
(Adarsh Kumar Goel)
Judge
July 13, 2009 (Daya Chaudhary)
'gs' Judge