C.R.No.3914 of 2011 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.3914 of 2011 Date of decision: 8.6.2011 Aarti and another ….Petitioners Vs. Rajpal and others ….Respondents CORAM: HON’BLE MR. JUSTICE JASWANT SINGH Present: Mr. S.S. Dinarpur, Advocate for the petitioners. Jaswant Singh, J One Megh Nath, who claims himself to be the guardian of the petitioners Aarti and Komal (both minors) being their real maternal uncle, has filed the instant petition under Article 227 of the Constitution for setting aside the impugned order dated 30.5.2011 (P.3) and to recall the order dated 1.2.2011 (P.1) passed by learned Civil Judge (Jr. Division), Jagadhari with further prayer to allow him to represent the minor/petitioners by giving effective opportunity to lead evidence before the learned trial Court. Brief facts of the case are that the plaintiff-respondent No.1 filed a civil suit No.210 dated 5.2.2005 for declaration to the effect that he along with defendant Nos.5 to 13 (respondent Nos.4 to 12 herein) are owners in possession of the land in dispute described in the head note of the plaint and the release deed dated 16.11.2000 allegedly executed by father of the plaintiff-Mania in favour of defendant No.4-Sube Singh (respondent No.3 herein) as well as one Hari Singh (since deceased)-husband of C.R.No.3914 of 2011 #2# defendant No.1(respondent No.2 herein) and father of present petitioners- minors is illegal, null and void. Further challenge was to mutation No.744 in favour of aforesaid beneficiaries with a consequential relief of permanent injunction. During the pendency of the suit, the defence of defendant Nos.1 to 3 was struck off and they were proceeded ex parte vide order dated 1.2.2011 passed by the learned trial Court against which, an application through said Megh Nath was filed for recalling the said order but the learned trial Court dismissed the same vide order dated 30.5.2011 (P.3), hence the present petition. Learned counsel for the petitioners argues that defendant No.1- respondent No.2 herein did not appear before the learned trial Court and acted against the interest of the petitioners-minors resulting into striking off their defence and proceeded ex parte. It is further argued that the impugned orders are in violation of the provisions of Order 32 Rules 3 & 4 of the CPC. In support, learned counsel cites a judgment of this Court reported as Baldev Singh and others v. Sukhdev Singh and others, Vol. CXLIII (2006-2), 680. After hearing learned counsel for the petitioner and perusing the paper book, this court does not find any merit in the present petition and the same deserves to be dismissed. Admittedly, both the petitioners/minors were impleaded as defendant Nos.2 & 3 in the suit through their natural guardian and mother- Mohindro Devi/defendant No.1 (respondent No.2 herein) and written statement was filed on 25.2.2005 through their counsel but later on their defence was struck off and they were proceeded ex parte vide order dated C.R.No.3914 of 2011 #3# 1.2.2011 (P.1) by learned trial Court. Aggrieved against the said order, an application was filed by abovesaid Megh Nath on behalf of the petitioners- minors and paragraph Nos.2 & 5 of the application being relevant are reproduced hereunder: “2. That in this suit, applicants (defendant Nos.2 and 3) have been sued through their natural guardian i.e Mahendro Devi widow of Shri Hari Singh, their mother and written statement was filed on 25.2.2005 by Mahendro Devi through Shri Zora singh, Advocate. 5. That Smt. Mahendro Devi has been acting against the interest of minors in this case as she had already sold her share in the property and besides this she has also sold the share of the minors without any legal necessity.” It was the, inter alia, stand of plaintiff-respondent No.1 that during the pendency of the suit, defendant No.1 sold her share in the suit property vide registered sale deed No.8083 dated 29.3.2007 and after obtaining the guardianship certificate from the court of Ms. Neerja Kulwant Kalsan, the then learned Civil Judge (Sr. Division), Jagadhari vide judgment dated 5.9.2007 had also sold the share of defendant Nos.2 & 3 to defendant No.18-Shiv Charan (respondent No.17 herein) and due to this reason, they did not appear in the Court resulting into striking off their defence by the learned trial Court and rightly proceeding them ex parte. It is apparently clear that after obtaining guardianship certificate from the competent court, defendant No.1-respondent No.2 had sold the share of petitioners/defendant Nos.2 & 3 to defendant No.18 and as such the learned trial Court has rightly held that they are left with no right, title or interest in the suit property. The learned trial Court has also rightly observed that it is defendant No.18, who has stepped into the shoes of defendant Nos.1 to 3 and is contesting the suit. Thus, the learned trial Court C.R.No.3914 of 2011 #4# has rightly held that there is no question of appointing another guardian for the purpose of pursuing the litigation regarding the suit property as they were being properly represented by their mother-natural guardian but after selling their share lawfully petitioners/defendant Nos.2 & 3 are having no interest in the suit property. Thus, there was no violation of Rules 3 & 4 of Order 32 of CPC. Judgment of Baldev Singh's case (supra) cited by learned counsel for the petitioner is not applicable to the facts of this case as in that case, the suit was filed by appellant-plaintiff challenging the consent decree dated 17.10.1992 titled as Sukhdev Singh and others v. Chinto in which Chinto suffered a consent decree in favour of Sukhdev Singh and others and on that basis a mutation was sanctioned and thereafter a sale deed was executed by Balwinder Singh but since Balwinder Singh had died before institution of the suit, therefore, his legal representatives including minor son-Rinku and Rajo-minor daughter were impleaded as parties through their mother Amarjit Kaur. It was the case of the plaintiff that Sukhdev Singh etc were not related to said Chinto and the decree was obtained by fraud and impersonation. But in the present case, there is neither any such allegation nor any proof that any fraud has been committed by defendant No.1-respondent No.2. Admittedly the minors were being impleaded before the learned trial Court through their natural guardian-mother and after obtaining guardianship certificate from the competent court vide judgment dated 5.9.2007, the shares of the petitioners/defendant Nos.2 & 3 have been sold by their mother according to law and, therefore, the argument of the petitioner that the mother has acted against the interest of the minors is not C.R.No.3914 of 2011 #5# sustainable as there is no challenge to the judgment dated 5.9.2007 till date. Thus, no illegality or perversity is made out for interference with the impugned order dated 30.5.2011 (P.3) and order dated 1.2.2011 (P.1) passed by learned Civil Judge (Jr. Division), Jagadhari by this Court while exercising powers under Article 227 of the Constitution and as such said Megh Nath cannot be permitted to represent the petitioners-minors as their guardian in the present case as their interest was properly looked after by their natural guardian-mother at the relevant time. Dismissed. June 08, 2011 ( JASWANT SINGH ) manoj JUDGE