RAMESH KUMAR Vs. SHISH RAM

JUDGEMENT

(1.) IN this revision petition, one of the defendants is impugning the order of the trial Court whereby his application, for dismissal of the suit for non-compliance of provisions of Order 32 Rule 3 of the Code of Civil Procedure, was declined.

(2.) IN brief, the facts are that a suit for possession was filed by the plaintiffs (respondents No. 1 to 3 herein ). The suit was filed against four defendants, who at that time were minors. Defendants, Ramesh Kumar and Rajesh Kumar were sued through their father, Satyvir Singh, whereas Jitender Kumar and Satender Kumar were sued through their father, Maya Chand. Maya Chand did not appear despite service. The Court then per force appointed a Court guardian to represent the minors. Later on, Maya Chand made an application to contest the suit on behalf of the minors. That application was allowed and now, these minors are being represented by their father, Maya Chand. Suit on behalf of Ramesh Kumar and Rajesh Kumar, by their father, Satyabir Singh, was also contested. During the pendency of the suit, Ramesh Kumar became major, whereafter he moved an application for removal of his guardian and sought permission to contest the suit. The trial Court allowed him to contest the suit, but did not permit him to file a fresh written statement as it was of the view that the written statement had already been filed on his behalf. Against the said order, Civil Revision No. 2060 of 1992 was filed in this Court, which was later on got dismissed as withdrawn by Ramesh Kumar (petitioner herein ). At the time of dismissal of the revision petition, counsel for Ramesh Kumar made a statement before this Court that the petitions be dismissed as withdrawn so as to enable the petitioner to file a proper application before the trial Court. After its dismissal, an application was filed under Order 32, Rules 3, 3-A and 4 (3) of the Code of Civil Procedure, in which it was stated that the suit be dismissed as the plaintiffs have not filed the application for appointment of a Court-guardian, which is a mandatory provision, and that the period of limitation for pre-emption has already expired because the sale which is sought to be pre-empted in the suit is dated 29. 3. 1989. This application on contest, was dismissed by the trial Court with the finding that no prejudice has been caused to the minors for the non-compliance of the provisions, if any, but at the same time, plaintiffs were also asked to furnish the list of guardian of minor defendants. It is this order which is being challenged in the present revision petition.

(3.) LEARNED counsel for the petitioner contended that the trial Court ought to have dismissed the suit because of non-compliance of provisions of Order 32, Rule 3 and 4 of the Code of Civil Procedure, According to him, Sub-rules (2) and (3) of Rule 3 of Order 32 provide for making of an application for the appointment of guardian where defendant is a minor, but in this case, no such application was filed by the plaintiffs and, therefore, the guardian who acted for the minor had no authority to act as such. In support of this argument, he placed reliance upon a judgment of the division Bench of this Court reported as Gurpreet Singh v. Chatterbhui Goel, A. I. R. 1992 Pandh 95.