Civil Writ Petition No. 821 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 821 of 2008 Date of decision: 23.4.2009 Zakir Kussain and others @ Jakir Hussain ...petitioners Versus Financial Commissioner and others ...respondents. CORAM: HON'BLE MR. JUSTICE RANJIT SINGH Present: Mr. C.B. Goel, Advocate for the petitioners. Mr. Yashwinder Singh, AAG, Haryana for respondents No. 1 to 4 Mr. Adarsh Jain, Advocate for respondents No. 5 to 7. **** RANJIT SINGH J. Through the present writ petition, the petitioners seek issuance of writ of certiorari for quashing the order Annexure P-5, dated 2.6.2004 and Annexure P-6 dated 25.9.2007. These orders have been passed by the Commissioner and the Financial Commissioner respectively. Munshi was father of respondents No. 8 to 11 and grand father of respondents No. 5 to 7, 12 and 13. Munshi was a tenant under the petitioners on land measuring 24 kanals. He died leaving behind five sons i.e. respondents No. 8 to 11 and another son named Deen Mohd. Said Deen Mohd. had died prior to the death of his father leaving behind 5 sons who are respondents No. 5 to 7, 12 and 13. The petitioners filed an ejectment petition in July 1999, as Civil Writ Petition No. 821 of 2008 2 after the death of Munshi, Batai was not paid for Kharif crop 1995 to Rabi 1999. Since Munshi was already dead, respondents No. 5 to 13 were impleaded as his legal representatives. Respondents No. 5 to 7 were minor sons of Deen Mohd. and were accordingly sued through their real brother, who was also independent impleaded as respondent No. 12. In response to notice, respondents appeared and were represented by a counsel. The counsel representing the respondents made a statement before the Court on 29.7.1999 to the effect that respondents were prepared to deposit the demanded rent, interest and cost and that it be assessed and informed. Assistant Collector, accordingly, passed an order on 24.4.2001 directing the respondents to deposit the amount of Batai with interest and cost and granted 15 days time to do the needful. The amount assessed was Rs. 33,353/-. Assistant Collector further directed that in case respondents failed to deposit the amount, they shall be ejected from the land in dispute. Respondents did not deposit the amount as required. Instead respondents No. 5 to 7 challenged this order by filing a civil suit before civil Court at Ferojpur Jhirka. An application for ad interim injunction was also filed which was dismissed on 11.6.2001. Simultaneously, respondents No. 5 to 7 filed an appeal before the District Collector against the order passed by the Assistant Collector. This appeal was barred by limitation. The District Collector found no merit in the appeal and dismissed the same on the ground of limitation as well as on merits on 29.1.2002. It may here require a notice that the respondents had themselves volunteered to make payment leading to passing of the order. Still Civil Writ Petition No. 821 of 2008 3 unsatisfied, respondents No. 5 to 7 filed a revision against this order before the Commissioner, Ambala Division. The petitioners would submit that the Commissioner without considering the fact that the minors were represented properly through their brother, set aside the order passed by the Assistant Collector as well as by the Collector, on the ground that no guardian was appointed for the minors in terms of Order 32 Rule 3 CPC. The petitioners approached Financial Commissioner, who has also dismissed the revision by viewing that guardians were required to be appointed for the minor and in view of the violation of the provisions of Order 32 Rule 3 CPC the impugned order would be a nullity in the eyes of law. The petitioners have accordingly filed the present writ petition to impugn the order passed by the Commissioner and the Financial Commissioner. On notice of motion having been issued, respondents put in appearance. Counsel representing the respondents sought time to file reply 2.4.2008 and the case was accordingly adjourned to 18.11.2008. On request, the case was again adjourned to 25.2.2009. On 25.2.2009, counsel for the respondents sought time to file reply. This adjournment was granted subject to payment of Rs. 2,000/- as costs. The case was again adjourned for today by order, as it could not be taken up for hearing on 25.2.2009. Written statement is not filed though the cost has been paid as noticed in the separate order today. The counsel for the respondents submits that he will make submission as the order impugned are passed by quasi judicial authority. By referring to facts, Mr. C.B.Goel, counsel for the petitioners would contend that there is neither equity nor law in Civil Writ Petition No. 821 of 2008 4 favour of the respondents. According to the counsel, though respondents No. 5 to 7 were minor but had been impleaded through their elder brother, who was major. They were represented by a counsel before the authorities concerned. He is justified in making a grievance that the respondents or the other relations who were respondents before the authorities have agreed to deposit the Batai. The counsel also points out that some of the respondents, who were impleaded, had not come forward to challenge this order, either by filing the appeal before the Collector or before the Commissioner and the Financial Commissioner. The counsel accordingly points out that neither any money nor Batai has been paid to him till date and the possession of the land is also not handed over to him. The land continues to be in possession of the respondents who are enjoying the fruits of the property. Counsel for the petitioners would urge that the minors, impleaded as respondents in the present writ petition, were effectively represented. He has referred to a Full Bench decision of this Court in the case of Amrik Singh and another versus Karnail Singh and others AIR 1974 Punjab and Haryana 315 to say that non compliance of the provisions of Order 32, Rule 3, which may be mandatory would not render the decision void. He has accordingly submitted that the view taken by the Commissioner and the Financial Commissioner that the order passed by the Assistant Collector and the Collector would be a nullity due to violation of Order 32 Rule 3 is not legally correct. The observations of the Full Bench in the case of Civil Writ Petition No. 821 of 2008 5 Amrik Singh supra in this regard are clear and reads as under: “ After going through the case law cited before me, I have come to the conclusion that each case must be settled on its own facts and it would not be appropriate to law down any general rule. The crux of the matter is that it has to be seen whether the minor was effectively represented in the litigation. If he was, then the non-compliance with the provisions of Order 32, Rule 3, which are mandatory, would not render the decision void. But if the non-compliance has caused prejudice to the minor or he was not effectively represented, the decision will be void, i.e. the minor can either ignore it or avoid it. This approach is in consonance with justice because where the matter has been properly contested and no prejudice has been caused to the minor, it will be sheer injustice to the other side to re-open the matter. Litigation is a very expensive affair and the general principle of law is that it should not be encouraged. In this view of the matter, so far as the facts of the present case are concerned, there can be no two opinions that the minors were effectively represented and no prejudice has been caused to them. Their interests were effectively safeguarded by their brothers, who were co-defendants with them and whose interests were identical. They contested the suit on all conceivable grounds. The learned Civil Writ Petition No. 821 of 2008 6 counsel for the minors has been unable to bring to our notice any evidence or any contention which would enable us to hold that a wrong decree was obtained.” Counsel has also referred to a decision in the case of Ashok Chintaman Juker and others versus Kishore Pandurang Mantri and another AIR 2001 Supreme Court 2251. In this case, the Hon'ble Supreme Court has observed that on death of original tenant, widow of the elder son was impleaded as a tenant and represented all the tenants. Decree in such a case for eviction was held to be binding on all the member of the family covered by the tenancy. Accordingly, the claim made by the appellant's younger son on the basis to be a member of the family and residing with the original tenant at the time of death, was held to be original tenant and so could not resist the execution of the decree. It was further observed that there was no necessity to implead the younger son as necessary party to the litigation. From this observation, the counsel for the petitioner would contend that in the case of the tenant there would not be a requirement to implead all the LRs after the death of tenant. He accordingly pleads that impugned order passed by the Commissioner and the Financial Commissioner cannot be sustained. On the contrary, counsel for the respondents by making reference to the provisions of Order 32, Rule 3, would emphasize that the provisions are mandatory and it was incumbent upon the petitioners to move an application for appointment of guardian for the minors. In fact, counsel for the respondent would draw my attention to the amended provisions of Order 32, Rules 3 and 4 by the Punjab Civil Writ Petition No. 821 of 2008 7 and Haryana which have been substituted to provide that plaintiff shall file with this plaint list of relatives of the minors with their addresses, who prima facie are most likely to be capable of acting as guardian in a suit for a minor defendant. List shall constitute an application by the plaintiff under sub Rule 2 above. Sub Rule 4 further provide that the Court may at any time after institution of the suit call upon the plaintiff to furnish such a list and default of compliance may reject the plaint. Counsel for the respondents has referred to Gurpreet Singh (Minor) versus Chhatterbhuj Goel, 1991 (2) Revenue Law Reporter 460 in regard to the applicability of Order 32 Rule 3. Division Bench of this Court has held that where the plaintiff sues a minor it is incumbent upon him to file an application in court for appointment of guardian. In this regard only, counsel has also drawn my attention to the case of Asha Rani versus Amrit Lal 1977 Vol. LXXIX 1997 The Punjab Law Reporter 60. In this case, it is held that the provisions of Order 32 Rule 3 are mandatory and appointment of guardian not a mere formality. 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, seems 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, Civil Writ Petition No. 821 of 2008 8 according to the counsel for the petitioners, in the case of Gurpreet Singh (supra). 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 the 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 re-open 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 can not 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 Civil Writ Petition No. 821 of 2008 9 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 their brother. That is why, the Court perhaps did not consider it appropriate to appoint a guardian. Order 32 Rule 3 appears to be casting some obligation on the part of the Court for compliance in this regard. The mandatory nature of the rule as emphasised in the case of Gurpreet Singh (supra) appears to be in the context where minor is impleaded alone in a case. In such cases it may not be possible to ignore the provision of Order 32 Rule 3. In some of the cases, it is viewed that where a minor is effectively represented by a guardian with the sanction of the Court, the mere fact that a formal order of appointment was not passed will not render the decree a nullity as in the case of non representation. Reference here can be made to Chater Bhuj Goel Versus Gurpreet Singh 1983 Punjab 406, Rangammal versus Minor Appasami and others 1973 Madras 12. In Rangamma'sl case (supra) it is held that where interest of minor is adequately safeguarded by his natural father, the mere absence of a formal order appointing the natural father as guardian-ad-litem, will not vitiate the decree against the minor. Thus in cases of substantial representation, absence of appointment of Civil Writ Petition No. 821 of 2008 10 guardian cannot invalidate the decree. As already noticed, in this case there was substantial representation of the minors and as such the order need not have been interfered with due to non compliance of Order 32 Rule 3. The impugned order passed by the Commissioner and the Financial Commissioner thus cannot be sustained. The same are set aside. The order passed by the Collector and the Assistant Collector are restored. The necessary consequences would follow. The writ petition is accordingly allowed. April 23, 2009 ( RANJIT SINGH ) rts JUDGE