Heard counsel for the parties and perused the record.
Suit No. 6 of 1999 was filed by Shiv Kumar Lilariya before the Judge Small Causes Court, Gorakhpur for recovery of arrears of rent and eviction of the tenants from the shop in dispute. An application paper no. 6 Ga-2 was filed by the plaintiff for appointment of guardian of the petitioners on 8.2.1999 on this date of institution of suit itself as they were minors. The application was allowed on the same date and the natural mother of the petitioners Smt. Shobhawati Devi who was also a party in the suit with other sons and daughter as joint tenants was appointed as guardian of the defendant first set- petitioners. Thereafter, written statement was filed by Smt. Shobhawati Devi and others on 7.5.1999. The case was not pursued by the tenants thereafter and was decreed exparte on 23.5.2003 by the Judge Small Causes Court/Civil Judge (Senior Division), Gorakhpur. The plaintiffs then filed Execution Case No. 3 of 2004 for execution of the exparte decree dated 23.5.2003.
The case set up by the petitioners is that when they came to know about the exparte decree an application along with an affidavit was filed in aforesaid Suit No. 6 of 1999 under Order 9 Rule 13 read with Section 151 of C.P.C. for setting aside the exparte decree dated 23.5.2003 which was numbered as application no. 3 of 2006.
An objection was filed in the said Misc. Application No. 3 of 2006 by the plaintiff-respondent Ist set along with an affidavit which was replied by the petitioners. The Judge Small Causes Court, Gorakhpur vide his order dated 16.7.2008 dismissed the application filed by the petitioners for setting aside the exparte decree. Aggrieved, Revision No. 13 of 2008, Anant Lal and others versus Shiv Kumar Lilariya and others was filed by the petitioners before the Additional District Judge, Gorakhpur, which was also dismissed vide judgment and order dated 7.11.2008.
The orders passed by the court below have been challenged on the ground that the petitioners were minors at the time of institution of the suit and the procedure for appointment of guardian provided under Order 32 Rule 3 of C.P.C. was not followed. According to the petitioners, the application for appointment of the guardian was filed along with the suit by the plaintiffs and was allowed by the court below appointing mother of the petitioners as guardian on the date of institution of the suit itself without issuance of any notice to the petitioners who though minors but above 12 years of age and to their mother defendant Smt. Shobhawati Devi before appointing her as guardian of the petitioners and as such the exparte decree passed by the court below is in violation of principle of natural justice, null and void to the extent in so far as the petitioners are concerned.
One of the grounds taken by the petitioners is that Smt. Shobhawati Devi is a 'Pardanasin' lady and was not in a position to protect her interest as well as of her minor children i.e. the petitioners; that she had left Pairvi of the case in these circumstances, due to which the right of the petitioners is affected in the proceedings.
Learned counsel for the petitioners has submitted that the petitioners were minors above 12 years of age, hence notice was required to be issued to them and other probable guardians in accordance with the provisions contained in Order 32 of Rule 3 of C.P.C. Order 32 Rule 3 of C.P.C. as amended reads thus:-
" 3. Guardian for the suit to be appointed by Court for minor defendant- (1) Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
(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), 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.
(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.
(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement or removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.
High Court Amendments (w.e.f. 1st June, 1957 vide Notification No. 43 VIId-29 Order XXXII Rule 3-
(a) in sub-rule (3), at the end, delete the full stop and insert the following words, namely-
" and shall also contain the names and addresses of all probable guardians including any guardian of the minor appointed or declared by an authority competent in that behalf, or the father or the other natural guardian of the minor, or where there is no father or other natural guardian the person in whose care the minor is"
(b) for sub-rule (4), substitute the following sub-rule, namely-
" (4) The Court shall cause notice of such application to be served upon the minor as also upon all the probable guardians named in the application and such other persons as it may deem fit calling upon them to file objections, if any, to the appointment, etc. the proposed or any other probable guardian of the minor. In case any person himself desires to be appointed guardian of the minor instead of the proposed guardian, he shall furnish an affidavit verifying the fact he has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
The Court shall after hearing the objections, if any, and consisting the respective claims of all persons desirous of being appointed guardian including the proposed guardian, appoint such person as guardian of the minor as it may deem fit."
(c) in sub-rule (4) insert the following proviso, namely-, " Provided that if the minor is under twelve years of age no such notice shall be issued to him."
It is argued that the entire proceedings before the court below in so far as the petitioners are concerned, are vitiated for non-compliance of the mandatory provisions.
In support of his aforesaid submissions, learned counsel for the petitioners has relied upon paragraph 3 of the the judgment rendered in Narendra Pal Singh versus District Judge, Etawah, 1998 AWC (3)-1879 in which read thust-
"3. After hearing learned counsel for the petitioner, it appears that it is not necessary to deal with the question raised by him inasmuch as Article 123 of the Limitation Act provides 30 days time for setting aside a decree to be applied from the date of the decree or from the date of knowledge where a summons or notice was not duly served. The revisional Court has not entered into question whether summons were served or not, but has proceeded on the basis that two defendants had entered appearance through vakalatnama. Shri Singh, however, disputes filing of vakalatnama by the defendants. But is not necessary to go into this question. From the revisional order itself, it appears that the defendant no.2 was a minor and there was no proper appointment of the guardian for the said minor. On this ground, he has held that the application under Order IX, Rule 13 is liable to be dismissed, a fact that equally applies in respect of ex parte decree as well. Inasmuch as exparte decree has been passed against the defendant no.2 who is a minor without any proper appointment of guardian. This is a sufficient ground for setting aside exparte decree even on the finding of learned District Judge himself. Then again learned District Judge also found that Shiv Ram Singh had died during the pendency of the suit, namely, before the exparte decree was passed. Nowhere he has come to a finding that the said defendant had been substituted. Thus, there has been an abatement in respect of the heirs of the deceased Shiv Ram Singh. Thus, there appears serious infirmity which should weigh in the matter of decision on the application under Order IX Rule 13. When it is alleged that no vakalatnama has been filed by the defendants, it was incumbent upon the court below to decide such question and find out as to whether notices were duly served on the petitioners or not. Without such finding, the application under Order IX, Rule 13 would not be held to be barred by limitation. In order to hold it is barred by limitation, the court has to decide the question whether summons were duly served or not inasmuch as Article 123 of the Limitation Act provides 30 days time from the date of knowledge in case where summons were not duly served."
He has also placed reliance upon paragraph 4 of the judgment rendered in Khursheed Ahmad and another versus Gulzar Ahmad and others, 2006(3) AWC-3162 wherein the amended provisions as applicable in the State of U.P. has been considered holding that:-
"4. From the aforesaid facts and circumstances it is evident that the defendant No.3 was a minor and the first and prime duty of the court was the appointment of guardian of such minor and thereafter only further proceeding in the suit was to take place. The provisions of Order XXXII are mandatory and requirement of the same cannot be dispensed with. The provisions of Sub-Rules (1) to (4) of Order XXXII Rule 3 C.P.C. as amended by the U. P. State are relevant and reproduced as below:-
"(1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed and shall also contain the names and addresses of all probable guardians including any guardian of the minor appointed or declared by an authority competent in that behalf, or the father or the other natural guardian of the minor, or where there is no father or other natural guardian the person in whose care the minor is."
(4) The Court shall cause notice of such application to be served upon the minor as also upon all the probable guardians named in the application and such other person as it may deem fit calling upon them to file objections, if any, to the appointment of the proposed or any other probable guardian as guardian of the minor. In case any person himself desires to be appointed guardian of the minor instead of the proposed guardian, he shall furnish an affidavit verifying the fact that he has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
The Court shall after hearing the objections, if any, considering the respective claims of all persons, desirous of being appointed guardian including the proposed guardian, appoint such person as guardian of the minor as it may deem fit.
Provided that if the minor is under twelve years of age no such notice shall be issued to him."
On the other hand Sri H.P. Mishra, learned counsel for the respondents has submitted that the provisions of Order 32 of Rule 3 of C.P.C. will not apply in the instant case for the reasons that mother was natural guardian and also defendant in the suit and that the aforesaid provisions will apply only where there is no natural guardian of the minor(s). He submits that it is apparent from the record that the father of the petitioners had gone missing for the last 13-14 years back from the date of the institution of the suit and his whereabouts were not traceable. In this regard he has also relied upon paragraph 3 of the objection filed before the court below in respect to the application under Order 9 Rule 13 of C.P.C.
Paragraph 3 of the objection reads thus:-
^^3- ;g fd vkosndx.k dk ;g dFku fd vkosndx.k ds firk 13&14 o"kZ iwoZ nqdku o ?kj dks NksM+ dj pys x;s] mudk vkt rd irk ugha gS] fcYdqy xyr o >wB gSA lR; ;g gS fd 1996 esa nkok nkf[kyk ds iwoZ vkse izdk'k dks uksfVl Hksth x;h Fkh] ftl uksfVl ij ;g fy[kdj uksfVl okil vk;h fd nqdku can gSA dRrbZ vkse izdk'k ds 13&14 lky iwoZ ls ykirk gksus dh dksbZ tkudkjh cjoDr nkok nkf[kyk ds foi{kh la0 1 dks ugha Fkk vycRrk nkok nkf[kyk ds ckn vnkyr etdwj ds vkns'k ij vkse izdk'k ds LFkku ij vkosndx.k ,oa foi{khx.k 2 rk 6 ds fuosnu ij budks i{kdkj cukus dk vkns'k gqvk vkSj fu;ekuqlkj dk;Zokgh dh x;h vkSj vkosndx.k o nhxj foi{khx.k vius [kqn o ml le; ds ukckfyxku vius ekrk Jherh lqHkkorh ds ek/;e ls gkftj gksdj vius&vius izfrokn i= izLrqr fd;s] rc tkdj eqdnek fu.khZr gqvkA vycRrk y?kqokn esa nj[okLr 6x Jherh lqHkkorh dks ukckfyx ds cfy;k fu;qDr gksus dh nh x;h Fkh] tks vnkyr }kjk fnukad 8-2-99 dks Lohd`r Hkh gq;h rFkk lqHkkorh ekrk ukckfyxku ds dHkh Hkh ukckfyxku ds ofy;k gksus ls badku ugha fd;k FkkA** He has also placed reliance upon a certified copy of P.A.Case No. 29 of 1996, Sheo Kumar Leeladiya versus Om Prakash Sarraf wherein the age of the applicants Anant Lal and Deepak Kumar has been given as aged about 15 years and 11 yeas respectively sons of Om Prakash Sarraf by their next friend and guardian Smt. Sobhawati Devi their mother and submits that the petitioners were always being represented by their natural mother Smt. Shobhawati Devi in all court cases and that the petitioners chose to file the recall application not through their mother. When exparte decree was passed on 23.5.2003 rather recall application was filed by them in January, 2006 i.e. almost about 3 years of the passing of the decree which has rightly been rejected by the court below. He submits that as tenancy had jointly devolved upon the mother and her other major children, who contested the release application by filing their written statement, hence the decree would be binding upon the petitioners who were represented by their mother and other heirs of Om Prakash Sarraf.
In support of aforesaid submissions, learned counsel for the respondents has relied upon the judgment rendered in Pooja Gupta (Smt.) versus Pushkar Kumar (Sri) and another, (2008(2) ARC-818 wherein it has been held that after the death of original tenant the tenancy rights devolve on the heirs jointly and any action of the joint tenant(s) binds the other joint tenant (s) even if they have not been impleaded. The Court further held that there is a presumption in law that a joint tenant represents the interest of all other joint tenant(s) and a decree against a joint tenant would be binding on all other joint tenants even if they have not been impleaded.
Another decision relied upon by the learned counsel for the respondents is Kamla Prasad and others versus The District Judge, Allahabad and others, (2006(1) ARC-753. In this case also, the trial Court decreed the suit for eviction and arrears of rent. Revision was filed by respondent no.2 Lalloo which was allowed. The writ petition was filed which was also allowed on 19.2.1985 by the High Court remanding the matter to the Revisional Court to decide default. An application appears to have been filed on 16.9.1985 stating that respondent no.2 Lalloo died on 24.5.1985 and no substitution application was filed.The Court in that circumstances, held that all the contesting respondents were joint tenants and in case of joint tenancy every joint tenant can represent the case on behalf of other joint tenant as such the judgment dated 19.2.1985 cannot be set aside.
The last case relied upon by the learned counsel for the respondents is Mirza Qazim Raza Beg and others versus IVth A.D.J. Allahahad and another, 2006(3) AWC-3107 in which it has been held that on the death of original tenants, his heirs inherit tenancy jointly and order passed against one joint tenants is binding on another joint tenants. In the circumstances, it cannot be said that the decree for eviction not is not binding on legal representatives of original tenant not impleaded in suit.
After hearing learned counsel for the parties and on perusal of the record the admitted facts culled out are that-
(i) In P.A. Case No. 29 of 1996, Shiv Kumar Liladiya versus Om Prakash Sarraf, the age of petitioners Anant Lal and Deepak Kumar was given as aged about 15 and 11 years respectively and they were being represented in that case through their mother.
(ii) The application for appointing the natural mother of the petitioners was also allowed, hence on notice issued the mother she was aware of the averments made in the application and the plaint on being noticed they had filed their written statements contesting the suit which was allowed on the date of institution of suit itself appointing the mother as guardian of the petitioners.
(iii) In Suit No. 6 of 1999 an application for appointment of guardian was moved separately along with it. The mother and other joint tenants were impleaded as parties including the petitioners who were minors.
(iv) It is an admitted fact that the mother of the petitioners had contested the suit also and had not objected for having been appointed as guardian.
The moot question which arises in this case as to whether Order 32 Rule 3 of C.P.C. would apply or not and in case it would apply what would be the effect of alleged non-service of notice upon the petitioners. It is apparent from the decision rendered in Khursheed Ahmad (supra) that the prime duty of the Court before proceeding in the suit is to follow the mandatory requirements of Order XXXII Rules 1 to 4 C.P.C. as amended by the State.
Rule 1 provides for appointment of a proper person as guardian for the suit of such minor whereas Rule 2 provides for appointment of a guardian for the suit by an order which may be obtained from the Court in the name and on behalf of the minor or by the plaintiff. Rule 3 of Order XXXII C.P.C. makes it further clarified the position for appointment of guardian of a minor shall be supported by an affidavit to the effect that the guardian so appointed has no interest in the matters in controversy in the suit adverse to that of minor and that he is a fit person to be so appointed. This part of Rule 3 is in respect of guardian other than the natural guardian of the minor. The second part of Order XXXII Rule 3 C.P.C. provides that the names and addresses of such other probable guardians who may be appointed for the interest of the minors or where or the other natural guardian. The last part of order provides that where there is no other natural guardian to the person in whose care the minor is.
Admittedly, in this case an application along with an affidavit was filed for appointment of guardian under whose care the minor was as the father was gone missing and his death has been presumed. Therefore, the contention of learned counsel for the petitioners that Order XXXII Rules 1 to 4 of C.P.C. would not apply in the instant case for the reason that the mother was natural guardian and defendant in the suit along with other joint tenants and the petitioners who were minors at that time does not appeal to reason.
A plain reading of Order 32 Rule 3 C.P.C. as applicable to State amendment would show that the provisions would apply in the instant case, the mother was a party in Suit No. 6 of 1999 along with other joint tenants including the petitioners. The notice of suit along with application was served upon the mother as well as other joint tenants who contested the suit by filing written statement. In view of the settled position of law, notice served upon one of the joint tenants would mean notice served upon all the joint tenants; that the mother would have been deemed to have been noticed of the plaint suit, the application for appointing her as guardian and order upon it ,hence the petitioners who were minors at the time of institution of the suit, were not required to be served with separate notice as they were also represented through their mother. In the hypothetical cases even if the petitioners had been major then in that event the notice upon one of the joint tenants would have been sufficient i.e. upon the petitioners, hence merely because the petitioners were minors or above 12 years of age would not absolve them and the binding effect of the decree passed by the court below and it would be binding upon them as they were joint tenants being represented through their mother being minor at the relevant time and date. In so far as the question of mother of the petitioners being a 'Pardanasin' lady and unable to do Pairvi of the case is concerned, suffice it say that she had been representing the petitioners when they were minors in all court cases along with other joint tenants such as in suit no. 6 of 1999 as well as in this suit also. The reasons for not doing Pairvi are best known to her but it cannot be presumed that merely because she left the Pairvi of the case after filing of written statement as she was a 'Pardanasin' lady. It is an admitted fact that after her husband had gone missing for the last 13-14 years back she had raised and looked after all her children and contested P.A. Case No. 29 of 1996 as well as Suit No. 6 of 1999.
For all the reasons stated above, the writ petition is dismissed. No order as to costs.
Dated 9.3.2011 CPP/-