JUDGMENT : Jyotsna Rewal Dua, J. Civil suit was filed by the present appellants, primarily seeking declaration to the effect that judgment and decree dated 2.1.1989, passed by learned District Judge, Una, H.P., in Civil Appeal No. 302 of 1985 as affirmed by this Court on 11.5.1989 in RSA No.19 of 1989 was null & void and non binding upon them. This suit has been concurrently dismissed by both the learned Courts below. Aggrieved, instant second appeal has been preferred. Appellants & respondents were plaintiffs and defendants respectively before the learned trial Court. Parties are referred hereinafter as they were before the learned trial Court. 2. Bare minimum facts required for adjudication of this appeal are being noticed hereinafter:- First Round Of Litigation. 2 (i) Civil Suit No.118 of 1981 was instituted by the defendants for declaration that the land denoted by letters ABCDEF comprised in Khewat No.477, Khatauni No.917, 918, Khasra No. 4044/904 and 4045/904, situated in Una as shown in jamabandi for the year 1976-77 was owned and possessed by them, over which, the present plaintiffs had no right title or interest. Defendants in that suit further prayed for decree of possession of the suit land. This civil suit was originally instituted by the predecessor-in-interest of defendants against Sh. Gurbax Rai, predecessor-in-interest of the present plaintiffs. 2 (ii) During the pendency of the civil suit, Sh. Gurbax Rai, the original defendant died, whereafter, his legal heirs i.e. his widow Smt. Sheela Devi alongwith their children were brought on record in the civil suit. Order dated 12.11.1982 (Ext.D-3) was passed by the learned Sub-Judge 1st Class, Una, in this regard, allowing the application moved by defendants under Order 22 Rule 4 CPC, for bringing on record the legal heirs of deceased-defendant Sh. Gurbax Rai after noticing no objection by the legal heirs. Accordingly, Sh. Gurbax Singh, was represented by his wife Smt. Sheela Devi, who also represented her children being their mother & as such their natural guardian. 2 (iii) This civil suit was dismissed vide judgment & decree dated 29.11.1985 (Ext. D2). Aggrieved against this, the defendants- preferred a Civil Appeal No.302 of 1985, before the learned District Judge, Una. During pendency of the appeal, Smt. Sheela Devi died. 2 (iii) This civil suit was dismissed vide judgment & decree dated 29.11.1985 (Ext. D2). Aggrieved against this, the defendants- preferred a Civil Appeal No.302 of 1985, before the learned District Judge, Una. During pendency of the appeal, Smt. Sheela Devi died. Applications under Order 1 Rule 10 and under Order 32 Rule 3 of the Code of Civil Procedure were moved by the defendants for deletion of name of Smt. Sheela Devi from the array of parties. Noticing that her all legal heirs/children were already on record; two children of Sh. Gurbax Rai and Smt. Sheela Devi had also attained majority-namely Sh. Rajinder Kumar and Ms. Neelam Kumari; accordingly, learned District Judge vide order dated 13.2.1987 (Ext.D5) allowed the applications, which were not even opposed by the plaintiffs. Name of Smt. Sheela Devi was deleted from the array of parties and Sh. Rajinder Kumar-the eldest brother being major was appointed as guardian of his minor brothers and sisters. The order dated 13.2.1987, being relevant is extracted hereinafter:- “It is stated at the bar by the learned counsel for the L.Rs that the respondents/L.Rs have no objection in allowing the application of the plaintiff to bring on record the L.Rs. of deceased defendant Gurbax Rai. Therefore, application dated 17.2.1982 of the plaintiff under Order 22 Rule 4 C.P.C. allowed. To come up for amended plaint on 15.12.1985.” Learned District Judge allowed the appeal filed by the defendants vide judgment and decree dated 2.1.1989. The suit filed by the defendants was decreed and they were declared as owners of the suit land. The present plaintiffs were directed to deliver the vacant possession of the suit land to the present defendants. 2 (iv) Aggrieved against the decreeing of the suit, Sh. Rajender Kumar himself and on behalf of his minor siblings namely S/Sh. Kamal Kumar, Sanjiv Kumar, Rajiv Kumar and Sandhya Devi, in capacity as their guardian, moved this Court in RSA No. 19 of 1989. The Regular Second Appeal No. 19 of 1989, was dismissed on 11.05.1989. No further appeal was carried forward by any of the parties. The judgment & decree dated 2.1.1989 thus attained finality. PRESENT LITIGATION: 2 (v) Instant suit was filed by S/Sh. Sanjeev Kumar, Rajeev Kumar and Ms. Sandhya Devi, minor children of late Sh. Gurbax Rai through their maternal grand mother against Sh. Mehar Chand, predecessor-in-interest of the present defendants. No further appeal was carried forward by any of the parties. The judgment & decree dated 2.1.1989 thus attained finality. PRESENT LITIGATION: 2 (v) Instant suit was filed by S/Sh. Sanjeev Kumar, Rajeev Kumar and Ms. Sandhya Devi, minor children of late Sh. Gurbax Rai through their maternal grand mother against Sh. Mehar Chand, predecessor-in-interest of the present defendants. In this civil suit (94/1989), defendants No.5,6,7 and 8, were Sh. Rajinder Kumar, Sh. Kamal Kumar, Smt. Neelam Kumari and Smt. Surinder Kumari i.e. major sons and daughters of late Sh. Gurbax Rai. The primary prayer of the plaintiffs in the suit is that the judgment and decree dated 2.1.1989, passed by learned District Judge in Civil Appeal No.302 of 1985, as affirmed in RSA No.19 of 1989, vide judgment dated 11.05.1989, was null and void. It had been pleaded that plaintiffs were not properly represented, their interests were not protected therefore this judgment and decree had no binding effect on the tenancy rights of the plaintiffs over the suit land and therefore, the same is un-executable. The plaintiffs have therefore, asserted their right to remain in possession over the suit land as tenants, even after the passing of the decree, till the time they are evicted by the learned Rent Controller under the H.P. Urban Rent Control Act. The civil suit has been opposed by the present defendants on the ground that judgment and decree passed by learned District Judge on 2.1.1989, as affirmed by this Court in RSA No.19/1989, has attained finality. It is legal and binding upon the plaintiffs, who were duly represented by their guardian in all the proceedings and therefore, the plaintiffs are estopped from raising the plea at this stage that they were not represented properly before the learned Courts in earlier round of litigation. After considering the pleadings and evidence adduced by the parties, learned Trial Court dismissed the suit vide judgment & decree dated 26.11.1999. The judgment & decree has been affirmed by the learned First Appellate Court on 30.06.2007. The suit of the plaintiffs having been dismissed concurrently by two Courts below, instant Regular Second Appeal has been preferred. 3. I have heard Mr. N.K. Thakur, learned senior counsel, assisted by Mr. Karan Veer Singh, learned counsel for the appellants and Mr. Bhupinder Gupta, learned senior counsel, assisted by Mr. Janesh Gupta, learned counsel, for the respondents and gone through the record. 3. I have heard Mr. N.K. Thakur, learned senior counsel, assisted by Mr. Karan Veer Singh, learned counsel for the appellants and Mr. Bhupinder Gupta, learned senior counsel, assisted by Mr. Janesh Gupta, learned counsel, for the respondents and gone through the record. 4. This appeal was admitted on 8.4.2009 on following substantial question of law:- “Whether the impugned judgments passed in violation of the mandatory provisions of Order 32 Rule 3 CPC would operate res-judicata in the susbequent suit filed by the minors assailing the correctness of those judgments?” Question of law: 4 (i) Learned senior counsel for the appellants-plaintiffs has urged that the judgment and decree dated 2.1.1989, passed by the learned District Judge in Civil Appeal No.302/1985 as affirmed by this Court on 11.5.1989 in RSA No.19/1989 in the first round of litigation is null & void, as the present appellants-plaintiffs were not properly represented before the learned Courts in those proceedings. In support of his assertions, learned senior counsel has relied upon the provisions of Order 32 Rule 3 (4), which being relevant for adjudication of substantial question of law is reproduced hereinafter:- “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 sub-rule.” Learned counsel relying upon the above rule has contended that notice was not issued to either Sh. Rajinder Kumar or to his minor siblings before former's appointment as guardian. Therefore, interests of minor children were not watched properly. 4 (ii) The record of the case shows that the appellants-plaintiffs were duly represented before the learned Trial Court, learned First Appellate Court as well as before this Court, in earlier round of litigation. Following facts become germane in this regard:- (a) Civil Suit No.118/1981 was filed by Sh. Mehar Chand, predecessor-in-interest of the defendants against Sh. Gurbax Rai. Sh. 4 (ii) The record of the case shows that the appellants-plaintiffs were duly represented before the learned Trial Court, learned First Appellate Court as well as before this Court, in earlier round of litigation. Following facts become germane in this regard:- (a) Civil Suit No.118/1981 was filed by Sh. Mehar Chand, predecessor-in-interest of the defendants against Sh. Gurbax Rai. Sh. Gurbax Rai had died during the pendency of the civil suit before the learned trial Court, whereafter, all his legal heirs inclusive of his wife Smt. Sheela Devi, his four sons and three daughters were brought on record. In this regard, an application under Order 22 Rule 4 of CPC moved by the defendants was allowed on 12.11.1982. The plaintiffs had raised no objection at that point of time. All the minor children were represented by their mother Smt. Sheela Devi as their natural guardian. (b) Smt. Sheela Devi, died during the pendency of the Civil Appeal No.302/1985, before the learned District Judge. Two separate applications moved in this regard by the defendants, under Order 1 Rule 10 and under Order 32 Rule 3 of CPC were allowed on 13.2.1987. These applications were not contested by the present appellants-plaintiffs. Accordingly, name of Smt Sheela Devi was ordered to be deleted. Her children/legal heirs were already on record. Sh. Rajender Kumar-the eldest child of late Sh. Gurbax Rai, being major and competent to watch interest of his minors siblings was appointed as their guardian. No objection to his appointment as guardian was taken at that point of time. Civil Appeal No.302/1985 filed by the defendants was decreed by the learned District Judge, Una, on 2.1.1989. (c) Regular Second Appeal No.19/1989 was preferred by Sh. Rajinder Kumar, on his behalf and on behalf of his four minor siblings i.e. Sh. Kamal Kumar, Sh. Sanjiv Kumar, Sh. Rajiv Kumar and Smt. Sandhya Devi in the capacity as their guardian. Even in this appeal, no ground was taken that the interest of minors have not been adequately protected; they were not properly represented or that Sh. Rajinder Kumar was thrust upon the responsibility of becoming the guardian of his minor siblings without his wishes. There is no document available on record or any oral evidence to the effect that Sh. Even in this appeal, no ground was taken that the interest of minors have not been adequately protected; they were not properly represented or that Sh. Rajinder Kumar was thrust upon the responsibility of becoming the guardian of his minor siblings without his wishes. There is no document available on record or any oral evidence to the effect that Sh. Rajinder Kumar at any point of time expressed his un142 willingness in continuing as guardian of his minor siblings & vice versa or raised any grievance whatsoever against the order dated 13.2.1987, appointing him as guardian. 4 (iii) Learned senior counsel for the present respondents-defendants has relied upon AIR 1956 All 218 , titled Inder Pal Singh Vs. Babu Singh and others, relevant segment whereof is extracted hereinafter:- “8. Order 32, Rule 3 (4) also requires that the order appointing a guardian- ad-litem shall be passed only after notice to the father or other natural guardian of the minor. Admittedly the plaintiff's mother was his natural guardian alive at the time when Brij Bhukhan Singh was appointed his guardian-ad-litem. There is no proof that notice was issued to her. Learned counsel urges that this provision is imperative and inasmuch as the notice required was not issued to the plaintiff's mother, Brij Bhukhan Singh's appointment is invalid in law. Consequently it is argued that the plaintiff cannot be said to have been properly represented in the execution proceedings & the sale is not operative so far as his interest in the property is concerned. It is also contended that the Court below has erred in treating the defect in Brij Bhukhan Singh's appointment as merely an irregularity but the plaintiff is entitled to treat the sale relied upon by the other side as a mere nullity. 9. ……………………….. The person who is sought to be affected by it need not proceed to have it set aside, he may merely discard it. In order to establish that the appointment of Sri Brij Bhukhan Singh was an order which could be ignored as a mere nullity, the plaintiff ought to have shown that the Court had no jurisdiction to pass that order. Once it is found that the Court making the appointment- had Jurisdiction to do so, the error made by him in not following the rules prescribed by the Code of Civil Procedure cannot have the effect of taking away that jurisdiction. Once it is found that the Court making the appointment- had Jurisdiction to do so, the error made by him in not following the rules prescribed by the Code of Civil Procedure cannot have the effect of taking away that jurisdiction. The rules prescribed do nothing more than lay down the mode in which the jurisdiction is to be exercised. It would be certainly proper to follow these rules. Not following them would be evidently irregular. It is well- settled that a mere irregularity in procedure or error in deciding a case or passing an order will not make the decision or order absolutely inoperative in law. In considering the question a distinction has to be drawn between the .existence of Jurisdiction and the exercise of jurisdiction. …………………..” In AIR 1983 J&K 44 , titled Mushtaq Ahmad Vs. Mohd. Shafi Bhat and others, held as under:- “14. A similar view was taken by a Division Bench of the Patna High Court in Ramachandra Pd. Singh v. Rampunit Singh, AIR 1968 Pat 12 . These decisions no doubt support the contention of Mr. S. L. Kaul, but with utmost respect to the learned Judges who constituted the aforesaid two benches, I find it difficult to agree with them. Irrespective of the fact whether Sub-rules (3) & (4) are mandatory or merely directory in character, the fact remains that these are rules of procedure and are always subject to the provisions of Section 99. The decree passed in violation of these sub-rules shall not be open to question except on proof of prejudice. Section 578 of the Code of 1882 controlled not only the procedural provisions that existed in the Code when it came to be enacted, but would have controlled all such provisions which would be included in the Code even thereafter. The distinction drawn in the aforesaid two bench decisions was therefore clearly unreal. 18. Section 578 of the Code of 1882 controlled not only the procedural provisions that existed in the Code when it came to be enacted, but would have controlled all such provisions which would be included in the Code even thereafter. The distinction drawn in the aforesaid two bench decisions was therefore clearly unreal. 18. The law is thus well settled that where a minor defendant is substantially and effectively represented by a guardian with the assent of the court, who is not shown to have any interest adverse to him, and who has done all that he could possibly do to safeguard his interest in the subject matter of the suit, the decree passed against the minor shall not be open to challenge either because the plaintiff failed to make any application for appointment of his guardian, or because the court failed to pass a formal order appointing the guardian for him or because the guardian did not expressly consent to his appointment as such, or because the plaintiff failed to make a statement in the application for appointment of the guardian, or in the plaint that the proposed guardian did not have any interest adverse to that of the minor, unless prejudice is shown to have occurred to him on that account.” Hon’ble Apex Court in 1997 (10) SCC 273 , titled Kameshwari Devi & others Vs.Barhani and others, held as under:- “4. It is true, as rightly contended by Dr. Shankar Ghosh, learned senior counsel that in a case where the estate of the minor is involved in an action for partition or any other suit, the estate of the minor 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 are not protected, necessarily, the minor on his attaining majority or within three years thereafter is entitled to file the suit under Section 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. 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 de hors the decree. But, in this case, whether that question arises for decision is to be seen… “ In AIR 1974 P&H 315 , titled Amrik Singh and another Vs. Karnail Singh and others, held as under:- “21. In Kidambi Tirumalcharyulu v. Amisetti Venkiah, 80 Ind Cas 541 = (AIR 1924 Mad (763) Mr. Justice Wallace observed as follows:-- "No irregularity by way of an omission to send a notice as required by Order XXXII, Rule 3 of the Civil P. C. can operate to render void the presumed representation of minor defendants in a suit, unless such omission has in fact prejudiced their defence, and such prejudice is not a matter of assumption or presumption but of proof. The question as to whether the omission has in fact prejudiced the defence will depend on the further question whether the minors had a good defence and whether the omission to obey the rules and the appointment of a Court guardian, had the effect of shutting out that defence." 23. After going through the case law cited before me, I have come to the conclusion that each case must be settled on its own facts and it would not be appropriate to lay down any general rule. The crux of the matter is that it has to be seen whether the minor was effectively represented in the litigation. If he was, then the non-compliance with the provisions of Order 32, Rule 3, which are mandatory, would not render the decision void. But if the non-compliance has caused prejudice to the minor or he was not effectively represented, the decision will be void, i.e., the minor can either ignore it or avoid it. If he was, then the non-compliance with the provisions of Order 32, Rule 3, which are mandatory, would not render the decision void. But if the non-compliance has caused prejudice to the minor or he was not effectively represented, the decision will be void, i.e., the minor can either ignore it or avoid it. This approach is in consonance with justice because where the matter has been properly contested and no prejudice has been caused to the minor, it will be sheer injustice to the other side to re-open the matter again. Litigation is a very expensive affair and the general principle of law is that it should not be encouraged. In this view of the matter, so far as the facts of the present case are concerned, there can be no two opinions that the minors were effectively represented and no prejudice has been caused to them. Their interests were effectively safeguarded by their brothers, who were co- defendants with them and whose interests were identical. They contested the suit on all conceivable grounds. The learned counsel for the minors has been unable to bring to our notice any evidence or any contention which would enable us to hold that a wrong decree was obtained.” 4 (iv) Considering the facts of the case, in the backdrop of above legal position, it can be safely concluded that judgment and decree dated 2.1.1989, passed by learned District Judge in Civil Appeal No.302/1985 as affirmed by this Court vide judgment dated 11.5.1989 delivered in RSA No.19/1989, does not suffer from any infraction of procedure prescribed under Order 32 Rule 3 (iv) of CPC. Plaint does not disclose any pleadings to the effect that Sh. Rajinder Kumar did not contest the civil suit properly or did not safeguard the interest of the minors adequately or that he had acted in collusion with respondents-defendants. Requisite pleadings for setting aside the judgments and decrees are lacking in the plaint filed in the instant case. Substantial question of law is answered accordingly. 4 (v) Interestingly none of the plaintiffs have appeared in the witness box in support of their assertions made in the plaint. One Sh. Rattan Singh appeared as PW3, allegedly as a holder of special power of attorney on behalf of plaintiff No.1. He expressed ignorance of all material facts and his entire statement is based upon heresay. 4 (v) Interestingly none of the plaintiffs have appeared in the witness box in support of their assertions made in the plaint. One Sh. Rattan Singh appeared as PW3, allegedly as a holder of special power of attorney on behalf of plaintiff No.1. He expressed ignorance of all material facts and his entire statement is based upon heresay. Against the judgments and decrees impugned in the present appeal, one RSA No.437/2007 was instituted in this Court by Smt. Ranju Bala, Sh. Sahil Kumar, Sh. Kunal Kumar, Sh. Kamal Kumar, Sh. Sanjiv Kumar, Sh. Rajiv Kumar, Sh. Rajinder Kumar, and Smt. Neelam Kumari. This RSA No.437/2007 was dismissed as withdrawn on 4.10.2007. S/Sh. Sanjiv Kumar and Rajeev Kumar, who were appellants in RSA No.437/2007, are also the appellants in the instant RSA No.447/2007. Whether the instant appeal could be maintained by them after the withdrawal of RSA No.437/2007 is also another question; answer of which goes against them. 5. In view of the above discussions, no infirmity can be found in impugned judgments & decrees. Accordingly, the present appeal is devoid of merit and is dismissed as such. Pending application (s), if any, also stand disposed of accordingly.