D.K. Mahajan, C.J.
1. The question which has necessitated this case to be heard by a larger Bench is, whether non-compliance with the provisions of Order 32, Rule 3, Code of Civil Procedure in every case renders the decree a nullity ?
2. The Courts below decreed the plaintiff 's suit. This decree was passed in a suit for possession by pre-emption filed by Karnail Singh plaintiff. The sale sought to be pre-empted was made by Asa Singh, grandfather of the plaintiff. The vendees, defendants 1 to 4, are Amrik Singh and three others. They are real brothers. Defendants 3 and 4, Amrik Singh and Vir Singh are minors. In the plaint the minors were sued through their real brother Satnam Singh as their guardian. An application was made under Order 32, Rule 3 of the Code of Civil Procedure to the effect that Satnam Singh, defendant No. 1, the eldest brother of the minors, be appointed their guardian. It was also mentioned that Ajit Singh brother, Mangal Singh father, Smt. Tirath Kaur mother and an officer of the Court were fit to be appointed as guardian of the minors. It was stated that defendant No. 1 had no interest adverse to the minors; and in case defendant No. 1 refuses to act as the guardian any one out of the other persons mentioned be appointed as the guardian. Notice of this application was issued to the minors as well as defendant 2, the father and the mother. Notice was not served on the father or the mother but it was served on the two defendants as well as on the minors. Defendant No. 1 refused to act as the guardian and thereafter the Court proceeded to appoint Shri Madan Gopal Advocate as the Court guardian for defendants 3 and 4.
3. The suit was contested by the two major brothers on all conceivable grounds. The trial Court decreed the suit and this decision has been maintained by the learned District Judge. Before the learned District Judge, the contention was raised that the decree of the trial Court was a nullity, inasmuch as, the provisions of O. 32, R. 3 had not been complied with. This contention was negatived by the lower appellate Court. Against the decision of the lower appellate Court, a second appeal was preferred to this Court. This appeal was placed before me on 22nd September, 1972, and I directed that it be heard by a Full Bench so far as the two minors were concerned. The appeal filed by the major defendants was rejected on merits. On the merits, the decision with regard to the minor defendants would be the same.
4. Before proceeding to determine the question referred it would be appropriate to notice Section 99 of the Code of Civil Procedure which is in the following terms:--
'No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.'
In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, it was observed by their Lordships of the Supreme Court, while dealing with Section 99 that 'when a case had been tried by a Court on the merits and judgment rendered, it should not be liable to be reversed purely on technical grounds, unless it had resulted in failure of justice................'. While dealing with the provisions of the Code of Civil Procedure it was observed in Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425, as follows:--
'Now a code of procedure must be regarded as such. It is 'procedure', something designed to facilitate justice and further its ends: not a penal enactment for punishment and penalties: not a thing designed to trip people up. Too technical a construction of sections that leaves no room for reasonable elasticity of interpretation should, therefore, be guarded against (provided always that justice is done to 'both' sides) lest the very means designed for the furtherance of justice be used to frustrate it.
Next, there must be ever present to the mind the fact that our laws of procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decisions should not be reached behind their backs, that proceedings that affect their lives and property should not continue in their absence and that they should not be precluded from participating in them. Of course, there must be exceptions and where they are clearly defined they must be given effect to. But taken by and large, and subject to that proviso, our laws of procedure should be construed, wherever that is reasonably possible, in the light of that principle.'
5. The question that requires determination is, as to whether the non-compliance with the provisions of Order 32, Rule 3, the relevant part of which is in the following terms, invariably renders the decision of the Court a nullity ?:--
'R. 3. (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) The plaintiff shall file with his plaint a list of relatives of the minor and other persons, with their addresses, who prima facie are most likely to be capable of acting as guardian for the suit for a minor defendant. The list shall constitute an application by the plaintiff under sub-rule (2), above.
(6) Any application for the appointment of a guardian for the suit and any list furnished under this rule 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 each person proposed is a fit person to be so appointed.
(7) 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 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:
Provided that the Court may if it sees fit, issue notice to the minor also.'
6. It may be mentioned that all illegal decisions are not necessarily nullities. The illegalities would naturally render a decision imperfect. If the illegality strikes at the root of a matter and causes injustice, surely it has to be removed. But if the illegality results in no injustice, the mere fact that the decision is illegal would not render the decision a nullity. It is in the light of these observations that the present case has to be approached. Now, what are the facts proved? They are that the sale sought to be pre-empted is in favour of four brothers, two of whom were majors. Thus, the interests of the minor brothers as well as the major brothers were identical. The major brothers contested the suit for pre-emption on all conceivable grounds. No doubt, the trial Court proceeded correctly in the matter of Order 32, Rule 3(7), but failed to comply with same to its fullest extent. It did not wait to see the service of notice on the father and the mother. The brother had refused to act and in this situation of a Court guardian was appointed. It is on these facts that it has to be determined whether there has been a failure of justice and the interests of the minors have been adversely affected. To say the least, this has not happened. So far as the decided cases go, there seems to be an apparent confict but it is not real. In fact, each case has turned on its own peculiar facts and, therefore, the observations made therein have necessarily to be confined to the facts of that particular case.
7. I now propose to deal with the cases cited by the learned counsel for the appellants. They are:
1. Sayed Mahbub Hassain Shah v. Anjuman Imdad Qarza, AIR 1942 Lah 129;
2. Rajendra Prasad v. Prabodh Chandra Mitra, AIR 1921 Pat 25;
3. Krishna Behari v. Kedar Nath, AIR 1954 Pat 349;
4. Ramchandar Singh v. Gopi Krishna, AIR 1957 Pat 260;
5. Ramchandra Pd. Singh v. Rampunit Singh, AIR 1968 Pat 12;
6. Nirmal Chandra Ray v. Khandu Ghose, AIR 1965 Cal 562;
7. S. Govindan v. Lakshmi Bharathi, AIR 1964 Ker 244;
8. Inder Pal Singh v. Sarnam Singh, AIR 1951 All 823; and
9. Rangammal v. Minor Appasami, AIR 1973 Mad 12.
8. So far as Sayed Mahbub Hussain Shah's case AIR 1942 Lah 129 is concerned, this decision is an authority for the proposition that if a minor is nor represented at all, the decree against him is null and void. The question is that where a guardian ad-litem has been appointed by the Court but the procedure of Order 32, Rule 3 is not strictly followed, can the decree be said to be a nullity? So far as the minors are concerned, they are represented. However, the person who represents them has been appointed by not strictly following the procedure prescribed. At best, this can amount to an illegality but not of such a nature as to render the decree void. In the case before the Lahore High Court, no guardian ad-litem had at all been appointed for the minors.
9. So far as Rajendra Prasad's case AIR 1921 Pat 25 is concerned, in this case a guardian ad-litem was appointed upon the application made by the plaintiff and no notice of that application was served upon the minors or upon the guardian whom it was proposed to appoint, and in this situation it was held that the order was without jurisdiction. In this case, to start with the minors were represented by their mother who died and after her death an application was made by the plaintiff for the appointment of a Court guardian and no notice of that application was given to the minors or to the guardian whom it was proposed to appoint. The notice to the proposed guardian is essential for the reason that he may not like to act as the guardian and if that is so, the interests of the minor would suffer. This case, therefore, has no analogy to the facts of the present case.
10. In Krishna Behari's case AIR 1954 Pat 349, the mother was the certificated guardian but in spite of that one Maulvi Muhamad Majeed, a pleader, was appointed guardian ad-litem. The process was also served on the mother but she was not described in the process as the certificated guardian. In spite of this infirmity it was held as follows:--
'When the Court, in ignorance of the fact that the minor has a guardian appointed by a competent authority, appoints another person, that does not by itself vitiate either the decree passed in the suit or the sale held in execution of the decree. The whole question is whether any prejudice has been caused to the minor, and, in the absence of any allegation of fraud or prejudice to the minor caused by the irregularity, the proceedings must be regarded as valid.'
It will appear that this decision does not support the contention of the learned counsel and is in line with the view which I am inclined to take, namely that the illegality in not strictly adhering to the provisions of Order 32, Rule 3 does not necessarily render the decree void, or, in other words, a nullity.
11. The case on which very strong reliance has been placed by the learned counsel for the appellants in AIR 1957 Pat 260. In this case, during the execution proceedings, on the death of the father his minor son was substituted under the guardianship of his mother. No notice under Order 32, Rule 3(4) was served either on the minor or on his mother, his proposed guardian. A pleader was appointed as a guardian ad-litem. The plaintiff on attaining majority brought a suit for declaration that the sale of the plaintiff 's share was without jurisdiction, void and not binding on him. The trial Court held that the sale would not bind the minor because a pleader had been appointed guardian ad-litem without any notice under Order 32, Rule 3(4) to the minor or his natural guardian. When the matter came to the High Court, it was placed before a Single Judge who referred the same to a Division Bench. It was observed by the Division Bench:--
'If therefore, a minor is not effectively represented in a suit, or in an executing proceeding, such a defect is not one of mere form, but of substance, and, it goes to the root of the jurisdiction of the Court, and, therefore, such a minor in the eye of law is not a party to such a suit, or an execution proceeding, and, as such, no order passed, or decree made against him in such a suit, and no proceeding taken, or sale held in execution proceeding against him ex parte in his absence will bind him or his estate at all.'
Thereafter, the learned Judges discussed the entire case law on the subject including Krishna Behari's case AIR 1954 Pat 349 and held as follows:--
'1. Order 32. Rule 3(4) of the Code is mandatory and imperative, and its terms must be strictly complied with. Unless notices in terms of Order 32, Rule 3(4) are served on the minor and his guardian, and, when in spite of service of such notice they do not choose to appear, only then and, then only, the Court gets jurisdiction to appoint a guardian ad-litem for such a minor. But, even then, before appointing a guardian for the minor the Court must, as required by Order 32, Rule 4(3), obtain consent of the person proposed to be appointed guardian for the minor.
Disobedience of these mandatory provision leads to the consequence that there is no proper party to the suit, in the eye of law, and the minor is not a party to the suit, or proceeding, notwithstanding that his name appears on the record, and as such, he must be deemed in law to be wholly unrepresented, and, consequently the jurisdiction of the Court to proceed against such a minor will be ousted and, the Court will have no jurisdiction to render any judgment, or pass any order against such a minor, and, when such a minor is not a party to an execution proceeding the execution Court also has no jurisdiction to sell his property, because the Court has no jurisdiction to sell the property of a person, who is not a party to the suit, or the execution proceeding.
The mere fact that a pleader guardian-ad-litem has been appointed by the Court, without complying with the mandatory provisions of Order 32, Rule 3(4), of the Code, and the further fact that such a pleader guardian has acted on behalf of such a minor, cannot clothe him with the power to act as such on behalf of such a minor, and he must be considered to be disqualified from acting as such guardian under the express provisions of Order 32, Rule 3(4) of the Code, and therefore, in such a case also the minor is not properly a party to the proceeding and the judgment rendered or any order passed against him is without jurisdiction, and null and void, and the Court will have no jurisdiction in such a case also to proceed to sell his property.
2. Where, however there is a mere defect, such as absence of a formal order appointing a person as guardian-ad-litem, notwithstanding that the notices in terms of Order 32, Rule 3(4), and, Order 32, Rule 4(3) have been served, such a defect in the oppointment of the guardian will not necessarily be fatal to the proceeding, unless it is shown that the minor was prejudiced by the defect because such a defect is a mere irregularity, and a defect of mere form, and not of substance, and it does not go to the root of the jurisdiction of the Court to render any judgment against such a minor.
3. When, therefore, sub-rule (4) of Rule 3 of Order 32 of the Code, had been broken and completely disregarded, such a disobedience results in nullification of the order appointing guardian, and, therefore, in such a case the question of prejudice or no prejudice to the minor is irrelevant. Such a defect being of substance and going to the root of the jurisdiction of the Court, the question of prejudice or no prejudice to the minor is not the determining factor in order to ascertain the invalidity of the proceeding against such a minor. Such a proceeding is null and void against the minor, even when no prejudice has been caused to him by such a defect.'
12. It is interesting to observe that while dealing with Krishna Behari's case. AIR 1954 Pat 349 which decision is more in line with the facts of the present case, the learned Judges observed as follows:-
'The sixth and the last case, relied upon is of AIR 1954 Pat 349 decided by Naryan and Jamuar, JJ. In this case, the only defect was that instead of a certificated guardian in ignorance another person was appointed guardian of the minor. It was held that as no prejudice had been caused to the minor, and there was no fraud, this irregularity did not make the proceedings invalid.
On a review of all the above mentioned cases of this Court, and, which have been relied upon by the appellants, it will, therefore appear that:
(i) None of the cases, except the case of AIR 1923 Pat 242(2), were cases in which there was non-compliance of Order 32, Rule 3(4);
(ii) Some of these were cases in which Order 32, Rule 4(3) had been violated, but the Courts did not consider and refer to the earliest Bench decision of this Court in AIR 1917 Pat 161 which was exactly on the point, and, which held a contrary view ;
(iii) In the rest of the cases, there was only an absence of a formal order of appointment, which was covered by Walian's case (1903) ILR 30 Cal 1021(PC);
(iv) In none of the cases, the Court tried to find out the basis of Walian's case, nor did the Court consider the most important fact that Order 32, Rule 4(3) was a new provision introduced for the first time only in the Code of 1908, and, that there was no similar provision in the Code of 1882, on the basis of which Walian's case was decided, and which fact made a material difference in the legal position; and
(v) In AIR 1923 Pat 242(2) also, P. R. Das, J., who delivered the main judgment, as stated before, did not either consider the earlier Bench decisions of this Court in AIR 1921 Pat 25 and AIR 1917 Pat 161, nor, did his Lordship keep in view the fact that in the Code of 1882, which was the basis of Walian's case, there was no provision similar to either Order 32, Rule 3(4), or Order 32, Rule 4(3) of the Code of 1908.
For these reasons, I do not think the above cases are any authority here, I would, therefore, follow AIR 1921 Pat 25; AIR 1922 Pat 291; AIR 1917 Pat 161; (1904) 32 Ind App 23(PC) and AIR 1938 Pat 97 and, hold that disregard of Order 32, Rule 3(4) or even Order 32, Rule 4(3) of the Code, makes the order appointing a guardian for a minor without jurisdiction and null and void.'
13. I may, with due respect to the learned Judges, mention that the observations of the Supreme Court in Sangram Singh's case AIR 1955 SC 425 as to the interpretation to be placed on procedural law were totally ignored as well as the rule that it is not in every case that non-compliance with the provisions of Order 32, Rule 3 makes a decree null and void. The object of Order 32 is to see that no decrees are passed against minors where they are not effectively represented. I have deliberately used the words 'effectively represented' in contradistinction to the 'representation' contemplated by Order 32, Rule 3. If a minor is represented by a guardian ad-litem and the interests of the other major defendants are identical with him and those defendants are effectively prosecuting the litigation it can hardly be said that a minor is not effectively represented. Too much insistence on technical provisions of a procedural law can at times lead to absurd results and cause injustice to parties. It is only where a Court comes to the conclusion that the minor was not effectively represented and thus he was in fact not a party to the proceedings that the result envisaged by the learned Judges would necessarily follow. But where the minor is effectively represented, though technically not in line with the provisions of Order 32, Rule 3, the said result will necessarily not follow.
14. In Ramchandra Pd. Singh's case AIR 1968 Pat 12, the facts are that there was no notice to the proposed guardian. Moreover, the natural guardian was also ignored. There was no other party who could have effectively protected the interest of the minor. Therefore, this decision is of no assistance so far as the present case is concerned.
15. In Nirmal Chandra Ray's case AIR 1965 Cal 562, the following propositions were laid:--
1. Where a proper person had been appointed, with the sanction of the Court and in compliance with the mandatory provisions of law, to act as guardian-ad-litem in a suit, the decree passed in such suit cannot be challenged on the ground of a mere irregularity in the matter of appointment of such person as guardian-ad-litem, not causing any prejudice, such as the absence of a formal order of appointment by reason of the doctrine of effective representation.
2. The forgoing doctrine has no application where the Court has not considered any proposal for the appointment of a guardian-ad-item.
3. The provisions of sub-rule (4) of R. 3 and sub-rule (3) of R. 4 of O. 32, are mandatory and a decree obtained against a minor in complete disregard of these provisions is without jurisdiction and void ab initio.
Banerjee, J., one of the learned Judges constituting the Bench, further 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.'
This decision shows that it is only where a minor is not at all represented, in fact or in law, that the decision rendered against him will be void. But where there is substantial representation of the minor the decision will not become void, unless the minor has suffered prejudice by non-compliance of the provisions of Order 32, Rule 3.
16. In Govindan's case AIR 1964 Ker 244, it was observed that 'the failure to appoint the natural guardians of the minors as guardians ad litem is not a mere irregularity in procedure.' In this case, no attempt was made to appoint the legal guardians as guardians-ad-litem. Straightway a Court guardian was appointed. This case is, therefore, distinguishable.
17. In Inder Pal Singh's case AIR 1951 All 823, the question was not that the appointment of the guardian was not in accordance with the provisions of Order 32, Rule 3, but the guardian did not properly represent the minor in the suit. It was a case of negligence of the guardian and after relying on Dwarika Halwai v. Sitla Prasad, AIR 1940 All 256, wherein it is laid down:--
'Even where there was an order appointing a person as guardian, if that guardian did not a properly represent the minor, the decree would not be binding on the minor. Such a decree would be void ab initio and not merely voidable.'
It was held:--
'The case law is thus quite clear that a decree against a minor is void ab initio and a nullity, if it is passed in a suit in which no guardian of the minor is appointed or the appointment of the guardian is invalid or the validly appointed guardian does not properly represent the minor. The proposition of law laid down by the lower Court is, therefore, incorrect.'
18. In Rangammal's case AIR 1973 Mad 12, the observations of Banerjee, J., in Nirmal Chandra Ray's case AIR 1965 Cal 562(supra) were approved. These observations go contrary to the contention advanced by the learned counsel for which this authority has been cited.
19. Now, I proceed to deal with cases cited by the learned counsel for the respondents. In Ramaswami Chetty v. Doraisami Chetty, AIR 1923 Mad 465, no notice was given to the father and a Court guardian was appointed. The father was himself a party to the litigation and it was held that the absence of notice to the father of the appointment of the head clerk would only be an irregularity which would not affect the validity of the proceedings in the absence of proof of fraud or gross negligence on the part of the person appointed as guardian.
20. In Kumara Kangaya Goundar v. Arumugha Goundar, AIR 1970 Mad 179, the observations made in Ramaswami Chetty's case AIR 1923 Mad 465(supra) were approved.
21. In Kidambi Tirumalcharyulu v. Amisetti Venkiah, 80 Ind Cas 541 = (AIR 1924 Mad (763) Mr. Justice Wallace observed as follows:--
'No irregularity by way of an omission to send a notice as required by Order XXXII, Rule 3 of the Civil P. C. can operate to render void the presumed representation of minor defendants in a suit, unless such omission has in fact prejudiced their defence, and such prejudice is not a matter of assumption or presumption but of proof.
The question as to whether the omission has in fact prejudiced the defence will depend on the further question whether the minors had a good defence and whether the omission to obey the rules and the appointment of a Court guardian, had the effect of shutting out that defence.'
22. In Ram Rekha Singh v. Ganga Prasad Mukharaddhwaj, AIR 1926 All 545(FB), it was observed:--
'Assuming that there have been such irregularities in the appointment of the guardian ad litem in the previous suit as to entitle the plaintiffs to re-open the question, they cannot by merely showing irregularities succeed unless they can satisfy the Court that they have been prejudiced and have been deprived of some good defence which was open to them.'
23. After going through the case law cited before me, I have come to the conclusion that each case must be settled on its own facts and it would not be appropriate to lay down any general rule. The crux of the matter is that it has to be seen whether the minor was effectively represented in the litigation. If he was, then the non-compliance with the provisions of Order 32, Rule 3, which are mandatory, would not render the decision void. But if the non-compliance has caused prejudice to the minor or he was not effectively represented, the decision will be void, i.e., the minor can either ignore it or avoid it. This approach is in consonance with justice because where the matter has been properly contested and no prejudice has been caused to the minor, it will be sheer injustice to the other side to re-open the matter again. Litigation is a very expensive affair and the general principle of law is that it should not be encouraged. In this view of the matter, so far as the facts of the present case are concerned, there can be no two opinions that the minors were effectively represented and no prejudice has been caused to them. Their interests were effectively safeguarded by their brothers, who were co-defendants with them and whose interests were identical. They contested the suit on all conceivable grounds. The learned counsel for the minors has been unable to bring to our notice any evidence or any contention which would enable us to hold that a wrong decree was obtained.
24. For the reasons recorded above, this appeal fails and is dismissed. There will be no order as to costs.
R.S. Narula, J.
Pritam Singh Pattar, J.
25. Appeal dismissed.