SATISH KUMAR MITTAL, J. - (1.) PLAINTIFFS Baldev Singh, Hardev Singh and Sher Singh have filed the instant appeal against the order dated 15.4.2003 passed by the Additional District Judge, Sangrur whereby after setting aside the judgment and decree of the trial Court, the matter has been remanded back for de novo trial after complying with the mandatory provisions of Order 32 Rule 3 CPC 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 another 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 impression. 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 CPC was filed nor the particulars of all the possible guardians and the requisite affidavit under Order 32 sub-rules (3) and (4) CPC 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 decreed 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, 1991(2) RRR 504 : AIR 1992 Punjab and Haryana 95, set aside the judgment of the trial Court and remanded the matter for de novo trial, while following as under :- "The lower Court file shows that there is no affidavit filed by the plaintiffs as required under Order 32 CPC. 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 who 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 v. Chattterbhuj Goel, 1991(2) RRR 504 : AIR 1992 P&H 95, 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 CPC governing the appointment of a guardian for the minor defendants. The trial before the lower Court shall commence de novo and the plaintiffs shall move the required application under Order 32 Rule 3 CPC, if so advised".
(3.) COUNSEL for the appellants while relying upon the Full Bench decision of this Court in Amrik Singh, etc. v. Karnail Singh, etc., 1974 PLR 744 (FB) 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 cased or suffered by them. 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 de novo 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 CPC, 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 as 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 others v. Smt. Barhani and others, 1997(3) RCR(Civil) 178 : JT 1997(3) SC 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.;