Paras Ram and Others vs Kumari Nirmal and Others

Rajendra Nath Mittal, J.—This second appeal has been filed by defendants Nos. 1 to 5 against the judgment and decree of the District Judge, Ambala, dated 22nd October, 1980.

Briefly the facts are that Rulia Ram, defendant No. 7 sold the property in dispute to defendant Nos. 1 to 5 for an alleged consideration of Rs. 10,000/- vide a registered sale deed dated March, 28, 1976. Kumari Nirmal, daughter of the vendor, instituted a suit for possession by pre-emption on the ground that she was the daughter of the pre-emptor and had a preferential right of pre-emption. The suit was resisted by the defendants. It is not necessary to go into the pleas taken by the defendants to defend the suit at this stage.

The learned trial Court decreed the suit on 15th May, 1980. Defendants Nos. 1 to 5 filed an appeal against the judgment and decree of the trial Court to the District Judge, Ambala. He dismissed the appeal on the ground that the defendants Daya Ram and Muni Ram were minors for whom guardian ad litem had been appointed by the Court and that the appeal not been filed on their behalf by the guardian ad litem but by Paras Ram defendant, without being appointed by the Court as guardian ad litem for them. The vendees have come up in appeal against the judgment and decree of the lower appellate Court.

It is contended by the learned counsel for the appellants that the learned lower appellate Court should not have dismissed the appeal on the ground that one of the defendants had filed the appeal on behalf of the minors without removal of the guardian ad litem appointed by the Court. He submits that in deciding the appeal against the defendants-appellants the learned lower appellate Court placed reliance on a decision of this Court in Ram Chander and others v. Amar Singh 1972 R.L.R. 603, which has been over-ruled by a letters Patent Bench in Ram Chander and others v. Amar Singh, Adovcate 1973 R.L.R 716, According to him the appeal could not be dismissed in view of the observations in Ram Chander''s case (Supra) (1973 R.L.R. 716)

I have given thoughtful consideration to the argument of the learned counsel and find force therein. It is not disputed that the learned trial Court in dismissing the appeal placed reliance on 1972 R.L.R. 603 which had been over-ruled in 1973 R.L.R. 716. The facts of the case were that in an appeal filed by 12 vendees against a decree passed in a pre-emption suit three of the vendees-appellants were minors. In the trial Court the minor-defendants vendees were represented by the stenographer of the Court who was appointed a Court guardian but later on he was replaced by the Ahlmad. At the time of passing of the decree for pre-emption, the Ahlmad had been transferred. The appeal on behalf of the minors was filed through the stenographer and not the Ahlmad who was the Court guardian. The Additional District Judge who disposed of the appeal, held that, so far as the three minors were concerned, the appeal had not been properly presented. He further held that the decision of the trial Court had become final qua three minors, and therefore, the appeal of the other defendants also could not proceed. Consequently he dismissed the appeal. That decision was upheld by a learned Single Judge in 1972 R.L.R. 603 (Supra). The Letters Patent Appeal against that judgment was accepted by the Division Bench which held that the power of the Court of appeal to give relief under Order 41 rule 4, Civil Procedure Code, was there even when a party jointly interested had not been impleaded. The above said case is on all fours with the present case. I am respectfully in agreement with the observations made therein. Therefore in my view the judgment and decree of learned lower appellate Court is liable to he set aside.

For the aforesaid reasons, I accept the appeal, set aside the judgment and decree of the lower Appellate Court and remand to it for deciding the case on merits. The costs of this appeal shall be the costs in the cause. The parties are directed to appear in the 1st appellate Court on 21st February, 1981.