GURNAM SINGH Vs. AJIT SINGH

JUDGEMENT

(1.) This judgment will dispose of Regular Second Appeal Nos. 1387, 1388 and 1389 of 1970, all of which are connected in the sense that the relief claimed in the three suits separately filed by the plaintiff-appellants was the same, but it pertained to three different mortgages. For a proper appreciation of the solitary point which is involved in these appeals, it would be necessary to briefly notice the facts. The plaintiff-appellants in all these appeals filed a suit against the respondents who were all minors for a declaration of title in regard to the appellants being the mortgagees of the land in suit. In the three suits, the respondent minors were shown to be under the guardianship of their father Bachan Singh. When notice regarding the suit was sent to the father of the minor respondents, he refused to accept service thereof and the trial Court vide its order dated April 23, 1968 passed on the application filed by the appellants directed that as the father had not chosen to appear and represent the interests of the minor sons, one Gulzar Singh maternal-grand father of the minors who was present in Court and who had accepted notice was duly appointed as guardian ad litem of the minors. It appears that after the passing of this order, no correction was either directed by the trial Court or done by the office of the Court in the name of the parties, by substituting the name of Gulzar Singh as guardian ad litem in place of Bachan Singh (father) who was shown as guardian of the minors in the three plaints. The suits which were all consolidated, proceeded in due course and after due contest, the same were dismissed by the subordinate Judge Second Class, Ludhiana, on August 11, 1969 by a single order. The appellants then filed appeals before the District Judge on October 6, 1969. The appeals were heard at the preliminary stage by the District Judge on October 10, 1969 and the same were admitted. Notices of the appeals were ordered to be issued to the respondents and the records of the lower Court were also requisitioned. When the matter again came up for hearing before the learned District Judge on December 24, 1969, the following order was passed by the Court :

(2.) The three appeals were finally heard by the Additional District Judge, who by means of the judgment dated May 13, 1970 dismissed the appeals on the sole ground that even though Gulzar Singh maternal-grandfather of the minor respondents had been appointed as guardian ad litem by the trial Court, his name was not so mentioned in the Memorandum of Appeals and no effort had been made to make a correction in this behalf till the hearing of the appeals. The learned Additional District Judge placed reliance upon Ganesh Singh Lal Singh Kshatriya v. Govind Ganesh Bakre and others, 1944 AIR(Nag) 78 and Sawan Ram v. Nachittar Singh,1952 AIR(Pepsu) 63, for holding that the appeals were void ab initio. The present Regular Second Appeals have been filed to impugn the judgment and decree of the Additional District Judge, mentioned above.

(3.) Mr. Sarin, learned counsel appearing for the appellants has submitted that the wrong mention of the name of the guardian in the Memorandum of Appeals filed before the District Judge, Ludhiana, was merely an inadvertent mistake occasioned by the fault of the Copying Agency of the trial Court. He has referred to the certified copies of the judgment and decree-sheet supplied to his clients for the purpose of filing an appeal before the District Judge in which the name of the guardian of the minor respondents continued to be shown as Bachan Singh, father of the minors. The submission is that on account of that fact, the counsel who had filed the appeals before the District Judge, was naturally misled in mentioning the name of the guardian as shown in the judgment as well as the decree-sheet. The learned counsel has also submitted that in any case all the minors have been impleaded as respondents and the defect if any, in regard to the description of their guardian ad litem would not make the appeal void ab initio. Referring to the two authorities relied upon by the learned District Judge, it is submitted that these authorities are distinguishable in as much as they apply to a case where minor or minors file an appeal through their guardian as next friend and not to a case where minors are respondents in an appeal. On the other hand, Mr. B.S. Jawanda, learned counsel for the respondents has taken up the stand that it would make no difference as to whether the minors were plaintiffs/appellants or defendants/respondents and if their names are not mentioned under the guardianship of a proper person, the appeal would be void ab initio.