IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. LPA No.591 of 2009 (O&M) Date of decision: 13.7.2009 Imran and others -----Appellants Vs. Jakir Hussain and others Respondents CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Mr. Adarsh Jain, Advocate for the appellants. Adarsh Kumar Goel,J. 1. This appeal has been preferred against judgment of learned Single Judge dated 23.4.2009, allowing the writ petition of respondent Nos. 1 to 4, against order of Financial Commissioner dated 25.9.2007, Anenxure P.6 and restoring the order of the Collector dated 29.1.2002, Annexure P.4. 2. The appellants are heirs of Munshi, who was a tenant on the land in dispute and was survived by four sons, apart from the appellants, who are minor sons of pre-deceased Deen Mohd. and their brother Ayub, who was major. The appellants were LPA No.591 of 2009(O&M) sued through their brother Ayub, who was major. The parties were represented through counsel, who made a statement on 29.7.1999 that they will deposit the rent, interest and cost. On 24.4.2001, direction to make the deposit within 15 days was given with a rider that on default, order of eviction may be passed. The deposit having not been made, order of eviction was passed, which was affirmed on appeal but was set aside in revision and the revisional order was upheld by the Financial Commissioner. 3. The appellate authority rejected the objection of the appellants that they being minors, and no formal order of appointment of guardian having been passed, order against them was a nullity. The finding of the Collector is as under:- “I have heard the arguments of the counsel for the parties and also perused the file of the case. The contention of the counsel for the appellants that provisions of Order 32 Rule 2 have not been complied with is not correct because the father of the minor appellants had already died and as per the Muslim law, mother cannot be appointed as the guardian. The present suit which has been filed, the real brother Ayub was appointed as the guardian and the cutting made in the Vakalatnama were corrected, is not correct because the Thumb impression of Ayub had already been affixed on this. The lower 2 LPA No.591 of 2009(O&M) court had passed the order dated 24.4.2001 in the presence of both the parties. Therefore, the submission of the counsel for the appellants that they did not know about the order regarding deposit of the Batai and order of ejectment cannot be accepted. While passing the order dated 24.4.2001, 15 days time was given to deposit the amount failing which the order of ejectment was passed. Till today, the amount of Batai has not been deposited by the appellants nor any application for condonation of delay in filing the appeal has been filed till date.” 4. The Commissioner reversed the above view and held that in absence of order of appointment of guardian, order of eviction was a nullity. Same view was taken by the Financial Commissioner. 5. Respondent Nos. 1 to 4, the landlords preferred a writ petition, which was heard by a learned Single Judge. The Learned Single Judge held that apart from the appellants, there were other contesting parties including their brother and uncles, who had no interest adverse to the appellants. The appellants were, thus, effectively represented and no prejudice was caused. Non compliance of Order 32 Rule 2 CPC, though mandatory, having not caused any prejudice, the order could not be treated as nullity, 3 LPA No.591 of 2009(O&M) in view of judgment of Full Bench of this Court in Amrik Singh and another v. Karnail Singh and others, AIR 1974 P&H 315. Finally, it was concluded as under:- “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 seem 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, according to the counsel for the petitioners, in the case of Gurpreet Singh (minor) v. Chhatterbhuj Goel, 1991(2) RLR 460. 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 4 LPA No.591 of 2009(O&M) 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 reopen 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 cannot 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 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 5 LPA No.591 of 2009(O&M) their brother. That is why, the court perhaps did not consider it appropriate to appoint a guardian….” 6. We have heard learned counsel for the appellants and perused the record. 7. It has not been disputed that apart from the appellants, their real elder brother and uncles were duly impleaded as parties being legal heirs of Munshi, the original tenant and they were represented by a counsel. They did not, in any manner, act to the detriment of the appellants, in collusion with respondent nos. 1 to 4. They were also equally affected by the order. In these circumstances, no prejudice has been caused in absence of formal order of appointment of guardian, as their brother could be their guardian who was himself a party. The matter is, thus, fully covered by Full bench judgment of this Court in Amrik Singh (supra). 8. Learned counsel for the appellants relies upon judgment of Hon’ble Supreme Court in Ram Chandra Arya v. Man Singh and another, AIR 1968 SC 954, to submit that in absence of guardian, decree would be void. In that case, the decree was ex parte without service of the contesting party, who was a lunatic. Other judgments relied upon are also on the principle that in absence of a guardian, the decree would be void. The matter 6 LPA No.591 of 2009(O&M) having already been considered by Full Bench of this Court in Amrik Singh (supra) and there being effective representation through a counsel, the order passed was not be liable to be interfered with. 9. We, thus, do not find any ground to interfere with the view taken by the learned Single Judge. 10. The appeal is dismissed. (Adarsh Kumar Goel) Judge July 13, 2009 (Daya Chaudhary) ‘gs’ Judge 7