Shri Ram Singh, Smt. Dolma Devi, Sh. Rajesh and Sh. Rakesh alias Rajeev vs Sh. Sanjay Mukherjee and Sh. Teja Singh

V.K. Ahuja, J.—This is a Regular Second Appeal filed by the appellants against the judgment and decree of the Court of learned District Judge, Kullu, dated 2.7.2001, vide which he had affirmed the judgment and decree passed by the Court of learned Senior Sub Judge, Lahaul & Spiti at Kullu, dated 21.8.2000, for possession and mesne profit etc. Briefly stated, the facts of the case are that the respondents hereinafter referred to as the plaintiffs filed a suit for possession of land measuring 1-9-0 Bighas comprised in Khasra No. 3564/1, alleging that the defendant has encroached upon this land. The suit for permanent prohibitory injunction and for recovery of Rs.500/-by way of mesne profit was also filed. During the pendency of the suit, the plaint was amended. The appellants as defendants were contesting the suit. It was decreed as against the defendants. An appeal was preferred before the learned District Judge, who vide his impugned judgment dismissed the appeal filed by the appellants. Being aggrieved, the appellants have come up in Regular Second Appeal.

Notice of the appeal was issued to the respondents.

I have heard the learned counsel for the parties and have gone through the record of the case.

The first and the main ground taken by the learned counsel for the appellants in this appeal is that one of the defendants/ appellants, namely, Rakesh, appellant No. 4 @ Rajeev was minor at the time of passing of the decree and this appeal has been filed by him alongwith other appellants and he has filed the appeal through his next friend Budh Ram, maternal uncle. In the grounds of appeal, a plea has been specifically taken by the appellants as ground No. 2 that Rakesh @ Rajeev was a minor. His date of birth is 15.10.1984 and he was wrongly sued as major and the suit was decided against him. It was also submitted that this point was raised before the Court of learned District Judge when the appeal was filed through the maternal uncle, but the learned District Judge ignored this fact, observing that this plea was not raised before the learned trial Court and, therefore, it cannot be accepted.

During the pendency of the appeal, the learned counsel for the appellants had also filed an application bearing CMP No. 590 of 2011 u/s 151 C.P.C., to now pursue the appeal in his own name since he has become owner and all the necessary facts as alleged by him in the appeal, which were relevant, were also mentioned therein.

This fact has not been disputed by the respondents that the date of birth of appellant No. 4 was 15.10.1984 as per the copy of the matriculation certificate filed on record.

During the course of arguments, learned counsel for the appellants had also referred to the report on the summons issued to appellant No. 4 Rajeev for 5.7.2000 at Page No. 29 of Part-B of the learned trial Court. A perusal of the said report that the Process Server has reported that Rajeev had gone to school and second part of summons was given to his brother. There is nothing in this summon that copy of the plaint was also enclosed therewith. On the next date i.e. on 5.7.2000, a Power of Attorney was filed on behalf of said Rajeev and others by their counsel. Nothing was mentioned therein that this Power of Attorney has been filed by the guardian of said Rajeev or that Rajeev was a minor and as per the copy of the matriculation certificate proved on record, on the said date, appellant No. 4 was admittedly a minor, which fact has not been disputed. A perusal of the record of the learned trial Court shows that on an application filed by the plaintiffs, the present appellant was brought on record as subsequent t transferee and thereafter, an additional issue No. 6-A was also framed on 8.11.1999 as under:-

Whether the defendant has become owner of the suit land by way of adverse possession?

Thereafter, an application under Order 18 Rule 17-A C.P.C. had been filed as is clear from the order sheet dated 22.5.2000 of the learned trial Court. In regard to the service of the newly added respondents No. 2 to 4, a perusal of order sheet dated 14.6.2000 shows that defendants No. 2 to 4 were not summoned as PF not filed and the same was ordered to be filed on that day only and defendants No. 2 to 4 were ordered to be summoned for 5.7.2000.

On 5.7.2000, a Power of Attorney was filed on behalf of the defendants and the learned trial Court proceeded to fix the case for arguments for 24.7.2000 and consequently, the case was decreed on 21.8.2000. Once these defendants No. 2 to 4 had been added as defendants during the pendency of the case, even though they were not min or, an opportunity had to be given to them to file written statement, if any and they should have permitted to contest the case, but the learned trial Court proceeded to dispose of the case by fixing it for arguments and then pronounced the judgment.

This plea has strongly been opposed by the learned counsel for the respondents on the ground that interest of the minor was duly protected by his natural guardian and once the natural guardian had contested the suit, they could not be permitted to take up this plea since no prejudice have been caused to appellant No. 4. This ground is not open to the appellants and the case cannot be remanded to learned trial Court on this ground.

To substantiate his submissions, learned counsel for the respondents while opposing the plea has relied upon the following decisions:

The decision in Kameshwari Devi (Smt) alias Kaleshwari Devi and Others Vs. Barhani (Smt) Dead by Lrs. and Others, . The observations made in Paras 4 and 5 are relevant and are being reproduced below:-

In a case where the estate of the minor is involved in an action for partition or any other suit, the estate of the senior is required to be properly represented taking all diligent steps by either guardian ad litem or the court guardian. If the interest of the estate of the minor is not protected, necessarily, the minor on his attaining majority or within three years thereafter is entitled to file the suit u/s 7 of the Limitation Act, after cessation of the disability to question the correctness of a decree which is sought to be made binding on him. But in that case, the limited defence that could be open to him is that either the decree in the earlier suit was obtained by fraud/collusion or by negligence by the court guardian or that the guardian ad litem did not safeguard the interest of the estate of the minor. On proof of those facts, necessarily, the decree does not bind him and it is open to the court to go behind the decree and consider the right of the minor dehors the decree.

In the partition suit the defence open to all the parties on the document was that it was not a genuine document and was brought into existence only to defraud the creditors. That question was common to the interest of all the persons including the minor. The parties had hotly contested the suit and the matter was carried up to the High Court and the High Court had considered it and recorded the finding that it was true, valid and binding deed being a registered partition deed and was acted upon; and it bound the parties. Under these circumstances, though the court guardian had not filed any separate written statement, it makes little difference on the facts in this case, for the reason that the defence on the Phatbandi was common to all and the estate of the minor was sufficiently represented by appointment of the court guardian and that court had, in fact, gone into that question. It binds the appellant and operates as res judicata. If it were a case dehors the document and any other independent right was available and not set up nor considered in the earlier suit, necessarily that question could be gone into in the present suit since that was not pleaded by filing any written statement or contested by the court guardian in that behalf. No other plea was raised in this suit. Under these circumstances, the finding that Phatbandi, binds the parties including the appellant is a finding validly recorded. Equally, the finding recorded by the appellate court and confirmed by the High Court that the court guardian had acted neither negligently nor fraudulently also is well justified on the facts and circumstances in this case. Phatbandi operates as res judicata and binds the appellant.

The decision in AIR 1928 371 (Lahore) , shows that that under Order 32 Rules 12 and 13, the case of a defendant who becomes major during the pendency of the suit is not provided for. Notice of the case need not be given to him.

The decision in Lanka Sanyasi Vs. Lanka Yerran Naidu and others, AIR 1928 Mad 294, was relied upon. The observations made are relevant and are being reproduced below:

No provisions have been made in the Civil Procedure Code, in respect of a minor defendant attaining majority. Therefore, the minor defendant who comes of age may, if he thinks fit, come on the record and conduct the defence himself. If, however, he does not do so and allows the case to proceed as though he was still a minor without bringing to the notice of the Court, the fact of his having attained majority, then he must be deemed to have elected to abide by the judgment or adjudication by the Court with respect to the matters in controversy on the basis of the suit at the time.

The decision in Achhaiber and Another Vs. Smt. Shakilunnisa Bibi and Others, was relied upon. The observations made in Paras 7 and 8 are relevant and are being reproduced below:-

A plaintiff on becoming a major could either elect to go on with or put an end to the litigation. However, a defendant, on becoming a major pending appeal has no such choice available to him. A minor-defendant who comes of age may, if he thinks fit, come on the record and conduct the defence himself. If, however, he does not do so and allows the case to proceed as though he was still a minor without bringing to the notice of the Court the fact of his having attained majority, then he must be deemed to have elected to abide by the judgment. The respondent in an appeal stands in the same position as a defendant in the suit. In the circumstances, the appellant has no locus standi to move an application for issue of a notice by the Court to the respondent, who attained majority pending appeal, about the pendency of the appeal. The appellant could not contend that if he succeeds in appeal the judgment would be rendered a nullity at the instance of the minor respondent who became major during pendency of appeal.

The decision in Rangammal Vs. Appasami and Others, was also relied upon. The observations made in Para-10 are relevant and may be reproduced below:

I am of opinion that the minor''s interests have been adequately safeguarded in the former suit by the natural father of the minor representing him and taking part in the proceedings in the court and the mere fact that a formal order was not passed will not vitiate the decree, and that there has been a substantial representation of the minor in the former suit. In the result, the second appeal is allowed. There will be no order as to costs. No leave.

On the other hand, to substantiate his submissions and to rebut the contentions putforth by the learned counsel for the respondents, learned counsel for the appellants had relied upon the following decisions:-

The decision in Moti Chand Vs. Balram Das, which shows that ex parte decree against minor -Guardian not proper and negligent. Court can set aide decree and order new guardian to be appointed. Minor cannot be forced to file separate suit.

The decision in Rambadan Rai and Others Vs. Paltan Paswan and Others, , was relied upon. The observations made in Para-8 are relevant and are being reproduced below:-

A minor who is not properly represented in a suit and against whom an ex parte decree has been passed, being not bound by the same, he being not a person properly made a defendant, cannot apply for setting aside the decree under O. 9 R. 13 as setting aside a decree presupposes that the decree exists against the defendant. Such a decree being a nullity and not binding upon him, he is not required to get it set aside.

The decision in The Sahib Chand Agricultural Service Society Vs. Kulwant Kaur and others, 1976 P.L.J. 537, was also relied upon. The observations made in Para-2 are relevant and are being reproduced below:-

Where a minor was not at all represented, in fact or in law, then the decision rendered against him would be void. In such a case the question of prejudice is immaterial. The occasion for considering the question of prejudice arises only where the minor is represented substantially, but not where he is not represented at all.

The peculiar facts of this case are that it is on the application filed by the respondents that this minor and other defendants have been impleaded as party. There was no report made in the summons that this appellant was minor, though it was mentioned that he has gone to school and the notice was accepted by his brother, but no copy of the plaint was enclosed therewith. There is no substance in the plea raised by the respondents that minor''s father has been contesting this case and he should have brought this fact to the notice of the Court that appellant No. 4 was a minor. No opportunity was given for him to depose so, since his statement had already been on record before impleading of appellant No. 4 as a party and there was no occasion for him to have come with this plea. Once he has not represented the minor at any time or the minor had been sued through his natural guardian, all these contentions putforth by the learned counsel for the respondents of negligence, prejudice, not having been pleaded will arise only in case the minor had been represented by the natural guardian and his natural guardian had filed the Power of Attorney on his behalf. How a minor could sign the Power of Attorney on his behalf once it has been proved as per the evidence that appellant No. 4 was a minor at the relevant time. According to law, in case he becomes major, no notice is required to be issued in case if he is duly represented by the Court guardian or a natural guardian and he can elect to contest the suit himself. However, there was no case of his electing to contest the case. Once his guardian had never represented him at any time or filed Power of Attorney on his behalf and therefore, there was no representation of the minor at any time. According to law, he can file a suit for setting aside the decree on ground of nullity within three years of attaining majority, but once he has chosen not to file a separate suit, Court cannot compel him to file a separate suit. Once this plea has been made by him particularly in the grounds of appeal, the question of negligence etc. will not arise. There has been no representation of his guardian to the case in the present facts. Apart from the above, it is also clear that the learned trial Court had been in haste in disposing of the case. Once it was clear that these three defendants had been added during the pendency of the suit, no opportunity has been given to them to file written statement, if any and the learned trial Court proceeded to dispose of the case without giving any opportunity to them to contest the suit, lead evidence or taking of such pleas which were available to them.

Thus, from the above discussion it is clear that from whichever angle the facts of the case are looked into, it cannot be said that the minor was duly represented or that he has no right now to challenge the decree passed against him and as such, the appeal filed by the appellants is liable to be accepted. The judgment and decree passed by both the Courts below are set aside and the learned trial Court shall proceed from the stage when the defendants had put appearance and they shall be permitted to file written statement as permissible by law and contest the case according to law. In view of the above discussion, the appeal is accepted and the case is remanded to learned trial Court for fresh decision. Steps shall be taken by the learned trial Court to dispose of the case within a period of four months. Parties through their learned counsel are directed to put up appearance before the learned trial Court on 27th March, 2012. The appeal stands allowed accordingly.