- (1.) Durga Devi and her two sons, Roshan Lal and Mool Raj, filed a petition under section 13 of the East Punjab Urban Rent Restriction Act, for the eviction of the firm Prem Sagar-Bahadur Kumar from two shops situated at Phillaur on the ground of non-payment of rent and subletting. The tenant-firm paid the arrears of rent alongwith costs and interest on the first hearing of the petition and contested the suit with regard to the other grounds. As a result of the pleadings of the parties, the following issues were framed :- 1. Whether the petitioners have locus standi to file this petition 2. Whether the respondents are liable to be ejected as alleged except for non-payment of rent 3. Relief.The learned Rent Controller decided both the issues in favour of the landlords and passed an order of eviction against the tenant-firm on December 8, 1971. The appeal against that order was dismissed by the learned Appellate Authority, Jullundur, on February 5, 197 4. The tenant firm has filed the present petition paying for the setting aside of the orders of eviction.
(2.) The learned counsel for the petitioner has submitted in the first instance that Mool Raj died during the pendency of the petition before the Rent Controller and his legal representatives were brought on the record but two of the legal representatives, namely, Saroj Kumari and Naresh Kumari, daughters of Mool Raj were minors and no guardian was appointed for them. It is submitted that the order of eviction passed by the Rent Controller in their favour is a nullity. This point was not taken before the Rent controller. Though it was mentioned in the grounds of appeal filed before the Appellate Authority, but it was not argued. There is no discussion on this point in the order of the learned Appellate Authority which shops that the learned counsel for the petitioner did not find any substance in the plea and abandoned it. No affidavit has been filed that this point was argued and that the learned Appellate Authority has not dealt with it. Moreover, as has been recently held by a Full Bench of this Court in Amrik Singh etc, v. Karnail Singh etc., 1974 2 ILR(P&H) 452, the order passed in favour of the said minors along with the other legal representatives of Mool Raj is not a nullity but is a good and valid order. In the case before the Full Bench, the suit had been filed against major and minor defendants and for the minors, Do guardian ad litem was appointed. It was urged that the decree passed against the minor defendants was a nullity. In the context in was held, as per head note : "that too much insistence of technical provisions of a procedural law can at times lead to absurd results and cause injustice to parties. Each case has to be decided on its own facts and it is not appropriate to lay down any general rule. The crux of the matter is that where a minor is a defendant in a suit it has to be seen if he is effectively represented. The non-compliance with the provisions of order 32, rule 3 of Code of Civil Procedure, which no doubt are mandatory, will not render the decree passed in the suit as void in every case. It is only where a Court comes to the conclusion that the minor was not effectively represented and thus he was in fact not a party to the proceedings that the decree passed will be nullity and the minor can either ignore it or avoid it. Where a suit is filed against major and minor defendants and the minors are represented by a guardian ad litem although the appointment of the guardian is not strictly in accordance with the procedure laid down in Order 32, Rule 3 of the Code, yet if the interests of the major and minor defendants are identical and the major defendants effectively prosecute the litigation. it can hardly be said that the minors are not effectively represented. The decree passed in such a suit will not be nullity." In the case before me, the decree is in favour of the minors and not against them and they were effectively represented in the litigation because their mother, a brother, an uncle and grand mother were prosecuting the petition 'vigorously. The minors have not complained that they were not effectively represented nor have their interests been prejudiced in any manner. In such circumstances the Full Bench did not hold the decree passed against the minors as void and nullity and it can certainly not be said that the decree passed in their favour is void or a nullity when they have no complaint against it. This objection of the learned counsel is therefore, repelled.
(3.) Another plea raised is that these shops belonged to Ganesha Ram and he made a Will with regard to the same in favour of his wife Smt. Ram Rakhi and grandsons Mool Raj and Roshan Lal. It was pleaded that he disinherited Vasdev and Smt. Durga Devi could not be said to be one of the landlords of the shops. After the death of Ganesha Ram, the mutation of the agricultural and was allowed in favour of his widow, Smt. Ram Rakhi and his grandsons, Mool Raj and Roshan Lal, on the basis of that will. The Will itself has not been produced and reliance is placed only on its mention in the order of mutation, a copy of which is Exhibit R/1 on the record. I agree with the learned Appellate Authority that in the absence of the Will, it cannot be said that Ganesha Ram had disinherited Vasdev and that Smt. Durga Devi had no right in the shops. It may be that Vasdev had died during the lifetime of Ganesha Ram and that is why the alleged Will was made in favour of grandsons. It may also be that the Will related only to the agricultural land and not to these shops. According to Hindu Law after the death of Ganesha Ram, the son, if alive, had the right o succeed to the exclusion of Ganesha Ram's widow, as he had died before the coming into force of the Hindu Succession Act, 1956. Smt. Ram Rakhi. therefore, did not become the owner of the shops and the landlord qua the petitioner firm after the coming into force of the Hindu Succession Act. No plea was taken by the petitioner firm that rent was being paid by it to Smt Ram Rakhi. Under the Hindu Law, therefore, Vasdev, if alive, had the right to succeed to Ganesha Rain and if he was dead, his children had the right to succeed. The decision of the learned Appellate Authority on issue No. 1 is, therefore. affirmed.;