Ram Chander and others vs Amar Singh

P.S. Pattar, J.—This an appeal filed by Ram Chander and other defendants against the judgment dated 9th December, 1970, of Shri N.S. Rao, Additional Sessions Judge, Karnal, dismissing their appeal against the judgment and decree dated 15th June, 1970 of Shri N.K. Jain, Sub Judge Second Class, Kaithal, passed for possession by pre-emption of land in suit on payment of Rs. 37,352/- against them in favour of the plaintiff.

The facts of this case are that the land in suit measuring 232 Kanals 12 Marlas belonged to Ram Sarup who sold the same to Ram Chander and other defendants appellants for Rs. 34,390/- on the basis of a sale deed dated 12th April, 1966. Amar Singh Advocate who is the son of the vendor filed suit for possession by pre-emption of this land on payment of whole of the sale price on the allegation that being the son of the vendor he had a superior right of pre-emption. The defendants contested the suit on various grounds and the following issues were framed by the trial Court:-

Whether the plaint is adequately valued and stamped for the purposes of court-fee and jurisdiction?

Whether the property in suit is a joint. Hindu family property of the vendor and the plaintiff. If so to what effect?

Whether the suit is within limitation?

Whether plaintiff has got a superior right of pre-emption?

Whether the suit land was banjar at the time of sale and if so, whether it has been reclaimed by the vendees before the date of institution of the suit?

Whether the suit is bad for partial pre-emption?

Whether the defendant vendees have effected improvements? If so, how much?

Whether the plaintiff has waived his right of pre-emption, if any?

Relief.

The Subordinate Judge passed decree for possession by pre-emption of this land in favour of Amar Singh plaintiff against the vendee-defendants on payment of Rs. 34,890/-. Feeling dissatisfied the vendee defendants filed appeal in the Court of District Judge, Karnal which was dismissed by Shri N.S. Rao, Additional District Judge Karnal on 9th December. 1970, on a preliminary point. He held that the appellants Nos. 1 to 3, namely, Ram Chander, Hukam Chand and Multan Singh were minors and that Ahlmad of the Court of Sub-Judge Second Class, Kaithal was their guardian ad litem appointed by the lower Court, but the appeal had not been filed by the minors through that guardian and that the appeal was filed through the Stenographer of that Court and therefore there was no proper appeal in that Court on behalf of the minor appellants and dismissed the appeal of all the appellants, but left the parties to bear their own costs. Feeling aggrieved the vendee-defendants have come up in appeal to this Court.

It is admitted that Ram Chander, Hukan Chand and Multan Singh appellants Nos. 1 to 3 are minors and the trial Court had appointed Ahlmad of its Court as the guardian ad litem durins the pendency of the suit. After passing of the decree by the trial Court the vendees filed any appeal in the Court of the District Judge and the memorandum of appeal and the Vakalatnama etc. were signed by 9 major vendees and that on behalf of the minors these were signed by the Stenographer to the Sub-Judge Second Class, Kaithal as their next friend/guardian and it is also admitted that the Stenographer of that Court was never appointed as guardian ad litem of the minors and that the Ahlmed of that Court was appointed as their guardian. It appears that the this Stenographer had appeared in the trial Court on one hearing that is, 10th May, 1970, on their behalf but on subsequent hearings the Ahlmad who was the guardian ad litem had been appearing on behalf of the minor vendees.

Order XXXII rule 3(5) says that a person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree. It is common case of the parties that the Ahlmed of the trial Court who was appointed by the Court as guardian ad litem of the appellants was neither removed nor retired as guardian and that the Stenographer of that Court was never appointed as guardian of the minor. Consequently the Stenographer had no right to file this appeal on behalf of the minors and the appeal on their behalf was not property filed.

In Shambhu Vs. Kanhaya, , where the facts were that:-

In a mortgage suit, in which the minor mortgagor was represented by the Nazir appointed as guardian ad litem the claim of the mortgagee was decreed and a third person appealed as next friend. Held: Where a guardian ad litem has once been appointed his appointment ensures for the whole of the lis in the course of which it was made, unless and until it was revoked by the Court.

In Bhagelu Vs. Dharma and Others, , it was held as under:-

Where a guardian ad litem to a minor defendant has once been appointed, such appointment continues for the whole of the lis or until it is revoked by Court, and the guardian so appointed is the only person who can file an appeal on behalf of the minor.

The law laid down in both these authorities applies to this case. The Ahlmed of the Court who was appointed as guardian ad litem of the minor-appellants Nos. 1 to 3 was the only person who could file the appeal on their behalf because his appointment enured for the whole of the lis until it was revoked by the Court. Where a guardian ad litem of a minor defendant has once been appointed such appointment shall continue for the whole of the lis or until it is revoked by the Court. The filing of the appeal by the Stenographer of the Court of the Sub-Judge Second Glass, Kaithal on behalf of the appellant Nos. 1 to 3 was illegal and there was no proper appeal on behalf of Appellants Nos. 1 to 3.

The Learned Counsel for the appellants contended that the appellate Court should have transposed appellants No. 1 to 3 as respondents and then appointed their guardian ad litem and since all the parties were before the Court it could not be said that there was no proper appeal filed in the Court of the District Judge In support of this contention he referred to Order 41 rule 4 and 33 of the Code of Civil Procedure. Order 41 rule 4 of the CPC lays down that when there are more plaintiffs or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all of them any one of the plaintiffs or of the defendants may appeal from the whole decree and thereupon the appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants as the case may be. Rule 33 of Order 41 of the CPC says that the appellate Court has power to pass any decree or make any other which ought to have been passed or made. These provisions obviously do not apply to this case.

The Learned Counsel for the appellants then referred to Saila Bala Dassi Vs. Sm. Nirmala Sundari Dassi and Another, wherein it was held that the Court can, if necessary, take action suo motu either under O. 1 R. 10 or in its inherent jurisdiction and transpose an appellant as respondent in the appeal. In that case Sudhir Khmar Mitter was owner of two houses and he mortgaged the same in favour of one Smt. Nirmala Sunderi Dassi who obtained a preliminary decree for sale of those houses and after taking accounts final decree for Rs. 3914/6/6 was passed on 20th April, 1936. According to the Rules of Calcutta High Court on the original side the decree holder was to take steps to have the decree prepared but she did not do so for about 18 years. On 12th May, 1952, Sudhir Kumar Mitter mortgagor judgment-debtor sold both the houses to Smt. Saila Bala Dassi for Rs. 60,000/- wherein it was stated that the amount was utilised largely for discharging the prior mortgages on which the decree had been obtained and execution proceedings had been taken and that the property were sold free from all encumbrances. The decree holder Smt. Nirmla Sunderi Dassi took steps to draw the decree and on 17th February, 1954, obtained an ex parte order granting her leave to draw and complete the decree and thereafter she started proceedings for sale of the mortgaged property. Then litigation started between the parties. The judgment debtor Sudhir Kumar Mitter and Saila Bala Dassi took objection that the execution of the decree was barred by limitation. A Single Judge of the Calcutta High Court held that the execution of the decree was not barred. There was further litigation between the parties regarding execution of that decree. Sudhir Kumar Mitter and Saila Bala Dassi had filed on appeal against some orders passed in those proceedings. It appears that Sudhir Kumar Mitter dropped the fight with Nirmala Sunderi Dassi the decree-holder and on the application made under Order 1, rule 10, Sudhir Kumar Mitter was transposed as respondent in appeal. In this authority there was a proper institution or presentation of the appeal to the Court and it was only a case of transposing one of the appellants as respondents as he had decided not to contest the claim of the respondents. Therefore this ruling has no application to this case.

The counsel for the appellants then referred to Bhubenshwar Prasad Narain Singh Vs. Sidheswar Mukherjee and Others, . Its facts were that the Minor sons were defendants 3 and 4 in the suit were not made co-appellants and were arrayed as respondents to the appeal. On their behalf applications had been made before the Court by their guardian ad litem to have them transposed from the category of the respondents to that of the appellants wherein it was mentioned that on account of the default of their guardian ad litem, who represented them in the Court below, no appeal was filed on their behalf. This application was accepted because their transposition from the category of the respondents to that of the appellants did not in any manner change the scope of the appeal and the main question which was to be decided in the appeal and this should be done in the ends of justice.

However, in the instant case the minor-defendants were not made respondents. But the appeal had been filed on their behalf by a person who was not their validly appointed guardian and had no authority to file the appeal on their behalf. Consequently there was no proper appeal filed on behalf of the minors. No application at any stage was made by any person on their behalf to transpose them as respondents. Moreover no application was made under Order 1 rule 10, Civil Procedure Code, in the Court of the Additional District Judge to transpose them as respondents by any person.

The objection raised in this case is whether the appeal was validly filed on their behalf or not. The decree was joint and indivisible and an appeal was filed on behalf of 9 persons only out of 12 vendees and thus there was no proper appeal before the Court. The rights of the vendees are joint and their shares are not defined. Therefore the request of the counsel for the appellants to transpose the minors as respondents is rejected. No proper appeal was filed on behalf of the minor appellants and therefore the appeal in the lower appellate Court on their behalf had to be dismissed. Since the decree was joint and indivisible and the decree on behalf of the remaining 9 appellants in the Court of the Additional District Judge could not proceed and consequently to avoid the conflicting decrees in the same case the appeal must fail and decision of the Additional District Judge must be affirmed. This appeal is therefore, dismissed, but under the circumstances the parties are left to bear their own costs.