BALDEV SINGH Vs. SUKHDEV SINGH

JUDGEMENT

(1.) PLAINTIFFS Baldev Singh, Hardev Singh and Sher Singh have filed the instant appeal against the order dated 15.4.2003 passed by the Additional District Judge, Sangrur whereby after setting aside the judgment and decree of the trial Court, the matter has been remanded back for de novo trial after complying with the mandatory provisions of Order 32 Rule 3 CPC governing the appointment of a guardian for the minor defendants.

(2.) IN this case, a suit for possession, declaration and permanent injunction was filed by the plaintiffs-appellants challenging the consent decree dated 17.10.1992 passed in Civil Suit No. 672 titled as "Sukhdev Singh and another v. Chinto", which was suffered by Smt. Chinto in favour of defendant No. 1 Sukhdev Singh and Balwinder Singh, the predecessor of defendants No. 2 to 5, and mutation sanctioned on the basis of the said decree as well as the sale deed executed by Balwinder Singh subsequently. Since Balwinder Singh had died before institution of the suit, therefore, his legal representatives i.e. Shiam Kaur, mother of Balwinder Singh, Amarjit Kaur, his widow, Rinku, his minor son and Rajo, his minor daughter, were impleaded as parties. The aforesaid two minors i.e. defendants No. 4 and 5 were impleaded under the guardianship of their mother Amarjit Kaur. It is the case of the plaintiffs that defendant No. 1 Sukhdev Singh and aforesaid Baldev Singh were not related to Smt. Chinto and the said decree was obtained by fraud and impression.

(3.) COUNSEL for the appellants while relying upon the Full Bench decision of this Court in Amrik Singh, etc. v. Karnail Singh, etc., 1974 PLR 744 (FB) submitted that the mother of minor defendants No. 4 and 5 through whom both the minors were sued, is having no adverse interest against the minors. Actually she and other defendants have hotly contested the suit therefore, the minors were effectively represented by their co-defendants therefore, no prejudice was cased or suffered by them. As such, the first Appellate Court was not justified in setting aside the judgment and decree of the trial Court and remanding the case for de novo trial. He further submitted that all illegalities would not render a decision nullity. If an illegality results into no injustice, then merely because the procedural illegality was committed during the trial, the decision given by the trial Court should not be considered as nullity. By referring to the provisions of Order 32 Rule 3A CPC, the learned counsel for the appellants submitted that no decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that of the minor, but such decree can be set aside if by reason of such adverse interest of the guardian or next friend, a prejudice has been caused to the interest of the minor. He also submitted that in this case no prejudice has been caused to the minors as co-defendants, including the mother of the minors, have hotly contested the suit. Learned counsel also relied upon the decision of the Hon'ble Apex Court in Smt. Kameshwari Devi @ Kaleshwari Devi and others v. Smt. Barhani and others, 1997(3) RCR(Civil) 178 : JT 1997(3) SC 403, wherein it was held that if the defence was common to all the defendants in earlier suit, including that of the minor, and the estate of the minor was sufficiently represented by appointment of the Court guardian, the decree is binding on the minor.