KANWARJIT SINGH Vs. GURDIT SINGH AND ORS.

JUDGEMENT

(1.) CHALLENGE in the present appeal is to the impugned judgment and decree of the lower Appellate Court, as well as, to the finding rendered on issues No. 2, 3 and 5 by the trial Court, whereby, it has been held that interest of the appellant -plaintiff was being protected and represented by other legal representatives of Shiv Singh.

(2.) MR . Kanwal Goyal, learned counsel appearing on behalf of the appellant -plaintiff submits that a suit bearing No. 83 of 1970 for redemption of the mortgage was filed in the year 1970 and the same was dismissed by the trial Court on 07.06.1971. In the aforementioned suit, father of the appellant -plaintiff, namely, Sadhu Singh and appellant were arrayed in their individual capacity, though the appellant was minor at the relevant point of time. The suit was decreed. The co -defendant, i.e., LR of Shiv Singh, challenged the aforementioned decree by filing first appeal. However, the same was dismissed, vide judgment and decree dated 09.06.1971, Ex. P4. The matter did not rest here. The aforementioned judgments and decrees were challenged by filing a regular second appeal bearing No. 1542 of 1975 and the same vide Ex. P7 was dismissed on 21.09.1983. The suit at the instance of appellant challenging the aforementioned judgment and decree had been filed on 08.09.1983, a few days before, the judgment rendered in the aforementioned regular second appeal, on the premise that provisions of Order 32 Rule 3 CPC were though mandatory, in nature, were not complied with, as admittedly at that point of time, the suit was filed within a period of limitation, i.e., within a period of three years of the date of attaining majority. The trial Court, though, found that the appellant -plaintiff was minor at that time but committed illegality and perversity, in holding that the estate of the minor was represented by other legal representatives. Aggrieved against the aforementioned judgment and decree, the appellant preferred an appeal before the lower Appellate Court. He further submitted that the respondents, herein, did not file any cross -objection/appeal against the finding rendered on issue Nos. 1 and 6 vis -a -vis holding the appellant to be minor, yet the lower Appellate Court confirmed the findings on the aforementioned issues, therefore, the present appeal involves the following substantial questions of law to be adjudicated by this Court: -

(3.) MR . M.L. Sarin, learned Senior counsel assisted by Mr. Nitin Sarin, Advocate submits that no question of law, much less, substantial question of law arise in the present appeal as the finding of fact has been arrived at, wherein, it has been held that the appellant -plaintiff was not minor at that point of time. Admittedly, in this regard, no evidence was led except solitary evidence, i.e., school certificate, was brought on record, whereas, other witnesses, namely, father, mother and other relatives, which were eventually required to prove the age of the appellant -plaintiff, had not been examined. He further submits that estate of Sadhu Singh or the mortgagee was being represented by the other legal representatives, as Sadhu Singh died intestate and left behind four legal heirs. He also submits that once Sadhu Singh son of Shiv Singh, had been impleaded, there was no occasion for the impleadment of appellant -plaintiff. Sadhu Singh, was proceeded against ex -parte and he did not move any application for setting aside the ex -parte judgment and decree, thus, had accepted the judgment and decree which had attained finality up to this Court.