1. The original defendant is the petitioner here and he has filed this petition under Article 227 against the order passed by the learned Extra Assistant Judge, Nasik in appeal. During the minority of the original plaintiff his mother Tarabai as the guardian had filed a suit against the petitioner for recovery of possession of the suit house. The petitioner was staying there for a long time. Because the plaintiff's suit was decreed, therefore the petitioner filed an appeal against the said decree. The decree was modified by the appellate Court and the petitioner was asked to vacate the suit house by March 16, 1966 in order to facilitate the plaintiff to start and finish the repair work. It was ordered that the petitioner shall be restored the possession of the premises after the repairs. It is in these circumstances that the original plaintiff obtained possession of the premises on March 17, 1966, and carried out the repairs. The unfortunate part of it was that the petitioner was not allowed to return to his premises and the result was that he filed a Miscellaneous Application on June 20, 1966 for restoration of possession under Section 16 of the Rent Act.
2. The petitioner impleaded the minor son of Tarabai as the defendant represented by his natural guardian mother Tarabai who had as the guardian of the minor filed the original suit against the petitioner asking him to vacate the suit premises for the purpose of repairs. No formal order appears to have been passed by the Court appointing his mother Tarabai as the guardian-ad-litem. The decree came to be passed in the miscellaneous application on June 29, 1967 but the original plaintiff's mother filed an appeal which was dismissed. It is in these circumstances that the original plaintiff who was represented by the natural guardian in the miscellaneous application and who had also filed an appeal against the decision of the trial Court in the miscellaneous application filed a suit with which we are now concerned. The respondent-plaintiff prayed for an injunction against the petitioner-defendant restraining him from recovering possession of the suit premises on the ground that the decree in the miscellaneous application is not binding on him because the petitioner did not take any steps to appoint his mother as the guardian and no formal order was passed by the trial Court appointing his mother as the
3. The trial Court after considering the facts and circumstances1 found that the original plaintiff established that the guardian was not appointed and the procedure laid down in Order XXXII, Rule 3 of the Code of Civil Procedure was not followed in the miscellaneous application. He was of the view that the decision in the miscellaneous application, however, is binding on the minor because he was substantially represented by the natural guardian mother, who was diligent enough to look after the litigation. He, therefore, dismissed the plaintiff's suit. The plaintiff therefore challenged the decree. The learned Extra Assistant Judge who heard the appeal, however took a very technical view and found that because the provisions of Order XXXII, Rule 3 were not complied with, therefore the decree in the miscellaneous application was a nullity and was not binding upon the minor. According to him even if the plaintiff's mother Tarabai was managing the affairs in the miscellaneous application, that would not help the petitioner because there was no order in her favour appointing her as the guardian-ad-litem. In the result therefore he allowed the appeal, set aside the judgment and decree of the trial Court and declared that the decision and the order passed in the miscellaneous application No. 25 of 1966 was not binding on the plaintiff. The petitioner was permanently restrained from executing that decree. This order therefore is now challenged here. The point therefore that arises here for consideration is whether the order passed by the learned Extra Assistant Judge is according to law.
4. It would be useful if we recall some of the admitted facts. The minor landlord is the respondent here. The respondent when he was a minor filed a suit in the year 1963 and his mother was a guardian representing the minor at that time. The respondent was born on July 13, 1948 and he became a major on July 13, 1966. The miscellaneous application No. 25 of 1966 with the decision of which we are concerned here was filed by the petitioner on September 26, 1966 for restoration of possession. He made the respondent a party to the proceedings through his natural guardian mother Tarabai. It is therefore significant to remember that the respondent who became a major on July 13, 1966 i.e. a month after filing of the miscellaneous application did not raise any objection whatsoever to the proceedings. His mother who was joined as the guardian of the respondent also never mentioned anything during the course of the proceedings of the miscellaneous application. The petitioner obtained a decree in the miscellaneous application on June 29, 1967. The respondent's mother who was representing the respondent as the guardian in the miscellaneous application therefore filed an appeal as the guardian of the respondent on October 7, 1968. In fact on October 7, 1968 the respondent had already become a major. He became a major on July 13, 1966. Her appeal was dismissed. It is after the dismissal of the appeal of the respondent's mother that, the respondent brought the suit on January 15, 1969 saying that the decree in the miscellaneous application was not binding upon him on the ground that a formal order was not passed by the Court appointing his mother as the guardian-ad-litem. The point therefore that arises here for consideration is whether such a defence can be taken by the respondent in the circumstances in which the decree in the miscellaneous application was passed.
5. Order XXXII of the Civil Procedure Code deals with suits by or against minors and persons of unsound mind. Every suit under Rule 1 of this Order by a minor shall be instituted in his name by a person who in such suit shall be called next friend of the minor. Rule 3 is as follows:
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 the minor and 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 other natural guardian of the minor, or, where there is no father 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.
(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.
6. It is clear from this rule that a guardian for the suit has to be appointed by a Court for a minor. The appointment has to be made by the Court after notice to the minor or to any guardian of the minor or to the father or other natural, guardian of the minor. Therefore there is no doubt that when the defendant is a minor and when he is not represented by any guardian the Court shall appoint a proper person to be guardian for a suit for such a minor. The provisions of this rule therefore appear to be that when a minor defendant is not represented at all, he obviously cannot be party to the suit and therefore the decree against him under Order XXXII, Rule 3 will be a nullity. Such non-representation, however, should be distinguished from substantial representation. When a Court has recognised a guardian-ad-litem but has made no formal appointment or has made an appointment which is open to objection owing to some defect of procedure, that would be a different matter. The rule in such cases is different, for a decree in those cases will bind a minor unless it is shown that the defect of procedure has prejudiced him. The distinction between non-representation and substantial representation is one between want of jurisdiction and irregular exercise of jurisdiction.
7. Now so far as the facts and circumstances of our case are concerned, our ease is certainly not a case of non-representation. It is not that the respondent was not represented at all in the miscellaneous application filed by the petitioner for restoration of the possession of the suit premises to him. It is a ease of substantial representation. In both the miscellaneous application as well as the appeal against the decree in the miscellaneous application by the respondent's mother, even advocates were engaged by her. There was also an application made by her in Court that an appeal would be preferred to the High Court. There is no doubt that Tarabai, the mother of the respondent is the natural guardian and she had taken all the care during the course of the litigation and was always diligent while prosecuting the same. In fact the respondent was no more a minor when his mother filed the appeal against the decision in the miscellaneous application. Neither the mother nor the respondent thought at that time that she was not the proper person to properly prosecute the appeal. There are few other circumstances1 against the respondent's plea. The respondent has admitted that a few of the documents which were used by him in the instant suit were the copies obtained by him from his mother. Evidently therefore his mother appears even now to be supplying him the documents for the purpose of prosecuting the instant suit to get out of the order passed against her and her son in the miscellaneous application. Another circumstance is that the respondent at first contended when the miscellaneous application was first filed, that he was a major and that he ought not to have been shown as a minor by the defendant. Later on however he changed his stand and contended that it was true that he was a minor at that time but was not properly represented in the application. These circumstances cannot be lost sight of when considering whether the decree of the learned Assistant Judge in appeal is a legal order or is a nullity.
8. The learned Assistant Judge appears to have relied on (1) Nathumal v. Mohd. Nazir Beg : AIR1955All584 (2) Ram Chandra v. Man Singh : 2SCR572 and (3) Nirmal Chandra v. Khandu Ghose : AIR1965Cal562 The Allahabad case is a case of non-representation under Order XXXII, Rule 3 and is a case of ex, parte decree. Minor Kailaschand was not represented in the suit at all and the decree which was passed there was an ex parte decree. The notice which was tried to be served on the guardian was also defective and no order was passed by the Court also appointing the guardian for the suit against the minor. In these circumstances therefore if the Allahabad High Court observed that the decree passed against the minor is bad and may be ignored, I do not think these observations having regard to the facts and circumstances of our case will help the petitioner. The Calcutta case also can be distinguished. That was also a suit brought by the minor for a declaration that the ex parte decree for rent obtained by the appellant against him was not binding upon him inasmuch as he was in that suit impleaded as represented not by the mother who was his natural guardian but by his brother who was also one of the defendants viz. defendant No. 12. It is significant to mention here what Mr. Justice Banerjee has observed:
The doctrine of substantial representation is a matter of substance and not of form. Where a minor was effectively represented in a suit by a guardian, although not formally appointed, and suffered no prejudice on account of the informality, the absence of a formal order of appointment of guardian is not fatal to the suit. However in the instant case, Section 148(h) of the Bengal Tenancy Act did not come into play because the guardian proposed was not natural guardian of the minors. There was also nothing to show that in trying to appoint defendant No. 12 as the guardian of the minors, the procedure as in Order 32 was followed. Therefore the minors were not properly represented in the rent suit and the decree as against them was a nullity.
9. Even this case therefore recognises the doctrine of substantial representation and not of form if a minor was effectively represented by a guardian although not formally appointed and there is no prejudice on account of the irregularity that would be fatal to the suit. This ease also therefore does not help the petitioner. The petitioner also relies on the Supreme Court case mentioned above. The Supreme Court was dealing with a decree against a lunatic without the appointment of a guardian and therefore Order XXXII, Rule 3 read with Rule 15 was being looked into. This was a case also of non-representation where an ex parte decree was passed against the lunatic. His property was also sold in the execution of that decree. The suit was filed by the auction purchaser for possession of the lunatic's property but it was contested on the ground that Ramlal was a lunatic and that the earlier suit had been instituted against Ramlal without the appointment of a guardian ad litem so that the decree in the suit was a nullity. Having regard to these facts the Supreme Court observed that Ramlal was an insane when the suit was instituted as well as when the house was sold in execution of the decree passed in that suit; that it is now a well-settled principle that if a decree was passed against a minor without the appointment of a guardian, the decree is a nullity, is void and not merely voidable; that this principle becomes applicable to the case of a lunatic in view of Order XXXII, Rule 15 and that the decree passed against a lunatic has to be treated as without jurisdiction and void. This is, therefore, also a case of non-representation and not substantial representation. The learned Extra Assistant Judge was in error when he relied on these rulings and passed the impugned order. 'We have also the well known Privy Council case Walian v. Banke Behari Pershad Singh I.L.R (1903) Cal. 1021. where the Judicial Committee of the Privy Council had observed that the Court after satisfying itself of the fact of minority is bound to appoint a proper person to act on behalf of a minor in the conduct of a suit and that this rule should be strictly followed but where the Court on its own has given sanction to the appearance of a person as such guardian, the absence of a formal order of appointment is not necessarily fatal to the proceeding. The ease before the Privy Council was of the mother of a certain minor defendant who appeared throughout the proceedings in the suit as their guardian. The Court admitted the plaint in which she was described as the guardian and in the decree the Court so described her. It was held by the Judicial Committee that although no formal order appointing her guardian ad litem was drawn up, the minors were effectively represented in the suit by their mother and with the sanction of the Court. There was nothing1 to suggest that the interests of the minors were not duly protected and the defects in procedure not having prejudiced them, the defects were merely erroneous and not errors fatal to the suit. We have also a set of circumstances which clearly shows that the mother of the respondent has diligently defended the miscellaneous application wherein she appeared throughout the proceedings as the guardian. The Court also admitted her throughout the proceedings as the guardian of the respondent although no formal order appointing her as the guardian ad litem was drawn up, The respondent was therefore effectively represented not only in the miscellaneous application but also in the appeal filed by her against the decision in the miscellaneous application. His interests were duly protected by her. If that is so, then the respondent cannot turn round and say after getting the house only for the repairs that he will not allow the petitioner to get into the house although his interests are protected under Section 16 of the Rent Act. I, therefore, find that the order passed by the learned Assistant Judge is not according to law. This petition, therefore, will have to be allowed and the decree passed by the learned Assistant Judge will have to be set aside. That order, therefore, is set aside and the order passed by the trial Court is confirmed.
10. Petition allowed. Rule made absolute with costs.