Haqiqat Singh vs Jasbir Singh and others

G.R. Majithia, J.—This Regular Second Appeal is directed against the judgment and decree of the First Appellate Court reversing on appeal those of the trial judge and decreeing thesuit of the plaintiffrespondent for declaration that the ex parte decree dated June 13, 1983 in Suit No. 40 of 1981 filled Haqiqat Singh v. Smt. Jarnail Kaur and the proceedings taken pursuant to the decree are null and void and as a consequential relief, the plaintiffrespodent is entitled to restitution of the suit property.

The facts as found established on record briefly are :

The disputed land was owned by Smt. Jarnail Kaur (hereinafter the vendor). She is the grandmother of plaintiffrespondent No. 1 (hereinafter, the plaintiff). Harbans Singh, respondent No. 2, father of the plaintiff acting as guardian of the vendor, entered into an agreement to sell with the defendant appellant (hereinafter the defendant). The vendor did not execute the sale deed in terms of the agreement to sell dated July 9,1979 thus necessitating the filing of a suit for specific performance of the agreement to sell. The father of the plaintiff acting as the attorney of the vendor sold the suit land to the plaintiff before the filing of the suit by defendant No. 1 for possession by specific performance of the agreement to sell, The plaintiff, who was a minor, was arrayed as a defendant in the suit through his father who was appointed as his guardian ad litem. He represented him in the suit and engaged a counsel for him. He did not prosecute the suit for a couple of hearings and he was proceeded ex parte. The trial Judge appointed a Court Guardian for the plaintiff. The Court Guardian contested the suit on behalf of the plaintiff and the suit ended in the judgment and decree dated June 13, 1983.

The decree in suit No. 40 of 1981 was challenged through the Civil Suit giving rise to this regular second appeal, inter alia, on the ground that the plaintiff was a minor when the suit for possession by specific performance of the agreement to sell was filing against him and interest was not properly looked after by the Court Guardian.

The trial judge on appraisal of the evidence found that the plaintiffs father acting as the guardian of the plaintiff appeared in the suit as is evidenced by the interim orders dated April 27, 1981, May 8, 1981, June 15, 1981, August, 10, 1981 and September 22, 1981 Exs. D4 to D8, respectively. The guardian of the plaintiff also executed the power of attorney in favour of the counsel Shri Mohinder Partap Ahuja Ex. PW5/A and PW5/B. No one appeared for the plaintiff on January 30, 1982 as is evidenced by the interim order Ex. D3. The defendant moved an application Ex. DW6/A for appointment of a Court Guardian for the minor plaintiff. On that application, the trial judge appointed Shri Anil Kumar, an Advocate as the Court Guardian of the plaintiff. The trial court found that the interests of minor were properly looked after by the Court Guardian and negatived the plea of the plaintiff that the Court Guardian was negligent in defending the suit. The trial Judge ultimately dismissed the suit.

On appeal by the plaintiff, the First Appellate Court reversed the judgment and decree of the trial judge principally on the ground that the provisions of Order 32, Rule 3 of the Code of Civil Procedure (for short, the Code) were not followed by the trial Judge while appointing Court Guardian of the plaintiff, Order 32, rule 3 of the code reads, thus :

"3. Guardian for the suit to be appointed by Court for minor defendant : (1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.

(2) An order for the appointment of a Guardian for the suit may be contained upon application in the name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

(4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian of the minor, or, where there is no father, mother or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this subrule.

(4A) xx xx xx xx xx

(5) xx xx xx xx xx"

According to the counsel for the plaintiff, subrule (4) of Rule 3 of order 32 of the Code enjoins upon the Court to serve a notice on the father and in his absence on the mother of the minor to defend the suit. If no guardian is appointed or declared by the authority competent in that behalf and in the absence of the father and mother, the notice has to go to other natural guardian of the minor, or where there is no father or mother or other natural guardian, to the person in whose care the minor is. In the instant case, since the trial judge, before appointing the Court Guardian, did not comply with those provisions, the order was passed in breach of the mandatory provisions and the appointment of the court Guardian was illegal and subsequent proceedings are invalidated. In support of his submission, he relied upon Gurpreet Singh v. Shri Chatterbhuj Goel, 1991 PLJ 570: 1991(2) RRR 504.

A bare reading of subrule (4) of Rule 3 of Order 32 of the Code indicates that before appointing a Court Guardian, notice to the father and. in his absence to the mother of the minor has been provided for. In the instant case, the father was appointed as a guardian ad litem of the plaintiff. He appeared for the plaintiff on a couple of hearings and also engaged a counsel on his behalf. The guardian ad litem and the counsel appeared on some dates of hearings, but on January 30, 1982, as is evidenced by the interim order, Ex. D3, neither the guardian ad litem nor the counsel appeared for the plaintiff. Application, Ex. DW6/A, was moved by the defendant under Order 32, rule 3 of the Code of appointment of the Court Guardian and the Court, on consideration of the entire material placed before it, appointed an advocates practising before it as a Court Guardian. The issuance of the notice to the father orto the mother of the plaintiff would have been a sheer formality and, in fact, an exercise in futility because the father of the plaintiff had been appointed as guardian ad litem and he deliberately refused to appear after a couple of hearings. On the facts of the instant case, it cannot be said that the provisions of Order 32, rule 3(4) of the Code were violated. In fact, these were substantially complied with., In Gurpreet Singh''s case (supra), the facts briefly were that Gurpreet Singh, minor owned house No. 1577 in Section 18D Chandigarh. His father Col. Sukhdev Singh, after obtaining permission from the Guardian Judge, entered into an agreement to sell dated June 4, 1979 with Shri Chatter Bhuj Goel, an advocate of this court. Saledeed was not executed pursuant to the agreement to sell. Shri Goel filed a suit for ''permanent injunction restraining the vendor from alienating the property and also initiated criminal proceedings against the father of the vendor. The vendor''s father was discharged by the criminal Court. The discharge order was assailed in Criminal Revision No. 1495 of 1979 and during the pendency of the criminal revision, the parties arrived at a compromise and the criminal revision was disposed of accordingly. The order passed by this court in criminal revision was set aside by the Apex Court and Shri Goel was permitted to file a suit for specific performance of the agreement to sell dated June 4, 1979. The suit was filed against the minor and his father was appointed as guardian ad litem. But no such application was moved as is enjoined by Order 32 rule 3 of the code and the father of the minor was not appointed as the guardian ad litem in conformity with those provisions. The Bench found that application for appointment of minor''s guardian was not moved in conformity with the provisions of order 32 rule 3 of the Code and since no valid guardian of the minor was appointed, the subsequent proceedings were invalid. The Court further found that the provisions of Order 32 rule 3 of the Code were mandatory and the violation of the same would render the proceedings illegal. The ratio of this ruling has no bearing on the facts of the instant case and is distinguishable. In the present case as stated supra, the minor was sued through his father who was appointed as guardian ad litem of the plaintiff. He appeared for the plaintiff on a couple of hearings and even engaged a counsel for him to defend him in the suit. Thereafter, neither he nor the counsel for the plaintiff appeared and the trial court, on an application moved by the defendant, appointed the Court Guardian of the plaintiff. The appointment of the Court Guardian was strictly in conformity with the provisions of Order 32, rule 3 of the Code and the provisions of sub rule (4) of rule 3 were substantially complied with, whereas in Gurpreet Singh''s case (supra) these provisions were not complied with and it was in that context that the Bench observed that failure to comply with these provisions invalidated the proceedings. The view taken by the first appellate Court is on erroneous construction of subrule (4) of rule 3 of Order 32 of the Code and cannot be sustained. For the reasons stated above, the appeal succeeds, the judgment and decree of the first appellate court are set aside and those of the trial judge are restored, but with no order as to costs.