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2002 DIGILAW 21 (HP)

RAM LAL v. SHER SINGH

2002-01-11

M.R.VERMA

body2002
JUDGMENT M.R. Verma, J. :- This appeal under Section 100 of the Code of Civil Procedure (hereinafter referred to as the Code) has been preferred by the appellant-plaintiffs (hereafter referred to as the plaintiffs) against the judgment and decree dated May 29,2001, passed by the learned District Judge, Sirmaur District at Nahan, whereby the judgment and decree dated 20th July, 2000 passed by the learned sub Judge, Rajgarh, has been set aside qua the respondents - defendants 1 and 2, though has been maintained insofar as the judgment and decree are against respondent - defendant No.3. 2. The plaintiffs instituted a suit against the defendants for declaration J and injunction against the respondents - defendants (hereafter referred to as the j defendants). Since defendants Sher Singh and Balwant Singh are minors, therefore, they were sued through defendant Hari Kaur, their mother and natural guardian. Plaintiffs case, as made out in the plaint, is that one Dila Ram was the owner in possession of land comprising khata/khatauni No.100/121, khasra No.828/541, measuring 5 bighas, situate in village Matyana, Teh. Rajgarh, District Sirmaur, (hereinafter referred to as the suit land) He also owned Maruti Van bearing No. HPN01261 and Mohindra Commander, bearing No. HP-10-0801. One Satya Devi was the wife of said Dila Ram and the plaintiffs were born out of the wedlock. Said Satya Devi died in the year 1996 and no other marriage was solemnised by Dila Ram. Said Dila Ram died in an accident on 28.6.1999, leaving behind the plaintiffs as his legal heirs, being his son and daughter and, therefore, they inherited his property and were also entitled to get bank, postal and GPF deposits of the deceased and are also entitled to other service benefits. However, on 20.10.1999, plaintiffs came to know that the mutation of the suit land has been attested in favour of the plaintiffs and defendants jointly, whereas, defendants have no right, title or concern with the estate of the said deceased. It is also claimed that the mutation has been got attested by the defendants in collusion with the revenue staff and the plaintiffs were not afforded any opportunity of being heard. Defendants also threatened to transfer the aforesaid vehicles and to get the service benefits of the deceased. 3. The defendants contested the suit. It is also claimed that the mutation has been got attested by the defendants in collusion with the revenue staff and the plaintiffs were not afforded any opportunity of being heard. Defendants also threatened to transfer the aforesaid vehicles and to get the service benefits of the deceased. 3. The defendants contested the suit. In their written statement, they took the preliminary objections regarding maintainability of the suit, locus standi of the plaintiffs, improper valuation of the suit, non joinder of necessary parties and want of jurisdiction. On merits, the defendants claimed that said Satya Devi was the first wife of Dila Ram and died in the year 1983. Defendant Hari Kaur was also legally wedded wife of Dila Ram and defendants Sher Singh and Balwant Singh were born out of the marriage between defendant Hari Kaur and deceased Dila Ram. It has, therefore, been denied that plaintiffs are the only legal heirs of the deceased. It has also been claimed that the plaintiffs are not in possession of the suit property which is in fact in possession of the defendants. It is further claimed that the plaintiffs are not entitled to get the bank and post office deposits, GPF etc. in the name of the deceased, as the deceased had nominated defendant Hari Kaur to get such deposits etc. She has also been given service by the University where Dila Ram was employed before his death. Thus, defendants have claimed to be the lawful heirs of the deceased and have denied the claim of the plaintiffs. 4. The plaintiffs filed replication wherein the grounds of defence as taken in the written statement were denied and the claim as made out in the plaint, was resorted. 5. On 11.4.2000, when the suit was listed for framing of issues, none appeared for the defendants and, therefore, they were proceeded against ex-parte. On the basis of the ex-pare evidence led by the plaintiffs, the learned trial Judge passed an ex-parte decree, declaring the plaintiffs owners in possession of the suit property and also granted permanent prohibitory injunction, restraining the defendants from transferring/alienating the said vehicles and from withdrawing bank deposits and claiming other service benefits accruing because of the death of Dila Ram. 6. 6. Feeling aggrieved, the minor defendants, through one Thakur Dass, preferred an appeal in the court of the learned District Judge, Sirmaur, who allowed the appeal to the extent that the judgment and decree qua the interests of the minor defendants was set aside. Hence the present appeal by he plaintiffs, which has been admitted for hearing on the following substantial question of law: 2. Whether the learned lower Appellate court is right in not remanding the matter once it had come to the conclusion that the decree against the minors could not have been passed without their proper representation." 7. I had heard the learned counsel for the parties and have also gone through the records. 8. It was contended by the learned counsel for the plaintiffs that once the appellate Court below had come to the conclusion that the trial Court had not taken steps as per the provisions of Order 32 of the code for appointing guardian of the minor defendants, the proper course, after setting aside the decree, would have been to remand the case which it failed to do. Therefore, the impugned judgment and decree cannot be sustained. 9. It is well settled that a decree passed against a minor in a suit wherein he is not properly represented or not represented at all, is null and void. Therefore, in so far as the learned District Judge had set aside the decree passed against the minors, the impugned judgment cannot be said to be illegal. However, the question, which arises for consideration is "whether in the facts and circumstances of the case, it deserved to be remanded as claimed by the plaintiffs? 10. There is no dispute that the minor defendants were sued through their natural guardian Hari Kaur, one of the defendants in the suit. However, it is evident from the zimini orders dated 3.11.1999 and 12.11.1999 that no process whatsoever was ordered to be issued to the minors and proposed guardian as such. M/s. B.S. Dogra and Karanjeet Singh, Advocate, put in appearance for the defendants on 21.12.1999 and filed written statement on behalf of the defendants. The learned Judge, however, failed to pass any order appointing Hari Kaur as the guardian and litem of the minors. M/s. B.S. Dogra and Karanjeet Singh, Advocate, put in appearance for the defendants on 21.12.1999 and filed written statement on behalf of the defendants. The learned Judge, however, failed to pass any order appointing Hari Kaur as the guardian and litem of the minors. Even the vakalatnama executed by her in favour of the aforesaid Advocates is not shown to have been -executed by her as a proposed guardian or a natural guardian of the minor defendants. Thus, the Advocates, who put in appearance for the defendants on 21.12.1999, have no authority to represent the minor defendants in the suit. Once the plaintiffs have sued the minors through a guardian, it was the dut of the learned trial Judge to have issued notices to the proposed guardian and also to the minors as per the provisions of Order 32 of the Code which it failed to do. The written statement though was filed on behalf of the defendants, but none appeared for them on and after 11.4.2000, when the trial Judge observed that defendants did not appear to be interested to defend the suit, therefore, they were proceeded against ex-parte and thereafter, after recording ex-parte evidence of the plaintiff, he proceeded to pass ex-parte decree in favour of the plaintiffs. Thus, there had been no representation of the minor defendants at all and the lower Appellate court is fully justified in setting aside the ex-parte decree against the minor defendants. The appellate court, however, lost sight of the fact that the interests of the minor defendants and defendant Hari Kaur in the suit were inseparable and stood on the same footing, being alleged class one heirs of the deceased, therefore, the learned District Judge is wrong and unjustified in setting aside the decree qua the minors and maintaining it qua defendant Hari Kaur as it has resulted in two irreconcilable and incompatible decrees. 11. 11. Since the impugned decree had been set aside on the ground of non representation of the minors because of the failure of the trial Judge to take appropriate steps to appoint a guardian for the minors in accordance with the provisions of Order 32 and without taking into consideration the material on record showing that they were minors, therefore, the effect of setting aside the decree against them could not be anything more than to relegate the minor defendants to the position where they stood at the stage at which they would have been in a position to contest the claim against them. Since the minor defendants had been sued through a guardian, the institution of the suit was complete and it was the duty of the court to issue a notice to the proposed guardian, take her consent to act as a guardian and to ensure that her interest were not adverse to those of minor defendants and to appoint her as guardian and litem for them. The Court, however, failed to discharge its duty and in the circumstances, the impugned judgment and decree could not have been passed in the manner as had been passed. 12. In the given circumstances the only legal course open to the learned District Judge was to set aside the decree as a whole and remand the case for retrial to the trial Court with direction to try the suit after observing the procedure for representation of the minor defendants as provided under Order 32. 13. In view of the above discussion, the judgments and decrees as passed by the Courts below cannot be sustained. 14. As a result, this appeal is allowed. The impugned judgment and decree of the Appellate Court as also the ex-parte judgment and decree as passed by the trial Court, are set aside and the suit is remanded to the trial Court for disposal afresh in accordance with law, with the directions that it will, at the First instance, appoint a proper person as guardian and litem of the minor defendants as per the provisions of Order 32 of the Code and thereafter proceed to dispose of the suit in accordance with law. 15. Parties are directed to appear before the trial Court on 11.3.2002. 16. Records of the Courts below be sent back so as to reach there before the aforesaid date.