Jagjit Singh, J.
(1) This second appeal was referred to a larger Bench by Pritam Singh Safeer, J. In the referring order the learned Judge also posed the following question, which he considered to be of general importance and likely to arise in many cases:-
'WHETHERa trial court has the jurisdiction to proceed against a minor defendant/defendants without compliance with Order 32, Rule 3 of the Civil Procedure Code The non-compliance will to what extent injure the decree that may be passed against the minor defendant/defendants and in case it is indivisible qua the other co-defendants ?'.
(2) Rafiquiddin Siddiqui is owner of house No. 3403, situate at Jangli Kuan, Kucha Pandit, Delhi-6. The first floor of the said house (which has hereinafter been referred to as 'the premises') was let out by the owner to Naziruddin, son of Lal Mohd. at a rent of Rs. 8.50 per month. On taking the premises on rent Naziruddin and his wife, Mst. Bashiran, started living in it. Mst. Bashiran, however, died issueless in the year 1957 or the year 1958. After his wife's death Naziruddin allowed one Mohd. Yasin and his family members to reside with him in the premises.
(3) In May 1962 Siddiqui applied for eviction of Naziruddin from the premises on the ground that the tenant had sub-let or otherwise parted with possession of the premises to Mhd. Yasin. 'The application was dismissed on March 20, 1963 by an Additional Controller. The appeal filed by the landlord against the order of the Additional Controller as well remained unsuccessful. While dismissing the appeal the Rent Control Tribunal held by its order dated July 23, 1963 that the alleged sub-letting had not been proved as 'Mohd. Yasin, his wife and children were residing in these premises along with the tenant as relations and they did not pay any rent to the tenant'. Thereafter a fresh application was made by the landlord for eviction of the tenant on the ground that the premises were bona-fide required by him for occupation as a residence for himself and for purposes of re-construction. While that application was still pending before an Additional Controller Naziruddin died on November 6, 1966.
(4) According to Siddiqui his tenant having died without leaving any heirs the license granted by the tenant in favor of Mohd. Yasin, also came to be automatically revoked with the death of the licensor. He, thereforee, wanted Mohd. Yasin and the latter's family members to vacate the premises. When that was not done a suit for permanent injunction was instituted by him but from the other side a preliminary objection was taken that the suit should have been for possession and not for mere injunction. Shri H. S. Bakshi, Subordinate Judge, upheld the preliminary objection and dismissed the suit on March 1, 1967 by holding that the remedy of the plaintiff was to file a suit for possession. Siddiqui filed an appeal against the decree of Shri Bakshi. That appeal was disposed of on August 9, 1967 by the Additional Subordinate Judge by allowing Siddiqui to withdraw the suit with liberty to file a fresh one on the same cause of action.
(5) On August 9, 1968 the suit for psssession of the premises was insituted by Siddiqui. In the suit besides Mohd. Yasin and his son Mohd. Yusuf the other family members of Mohd. Yasin and the wife and children of Mohd. Yusuf were as well imp leaded as defendants 1 to 11. Regarding defendants 3 to Ii it was stated in the plaint that they had no independent status and were only living in the premises as dependants of defendants I and 2 and that any order passed against defendants I and 2 would be binding on the other defendants as well, but to avoid any future complications or difficulties they had also been imp leaded as defendants 3 to 11.
(6) In the title of the suit instituted on August 9, 1968 Mohd. Yasin and Mohd. Yasuf were shown as defendants I and 2 respectively. The wife, three daughters and two sons of Mohd. Yasin were imp leaded as defendants 3,5,6,7,8 and 9. Out of them Amir, Munawar and Hamida (respondents 7, 8 and 9) being minor their father Mohd. Yasin was shown to be their guardian ad-litem. The wife, a daughter and a son of Mohd. Yusuf were imp leaded as defendants 4, 10 and 11. The daughter and the son, named Mumtaz and Anjan (respondents 10 and 11), being minors their father Mohd. Yusuf was mentioned to be their guardian ad-litem.
(7) With the plaint no application for appointment of guardians for the suit of the defendants who were minors was made and even a list of relatives of the said minors was not attached. Of course the heading of the plaint showed who were the parents of the defendants who were minors and as already mentioned above Mohd. Yasin was shown as guardian ad-litem of Amir, Munawar and Hamida and Mohd. Yusuf was shown as the guardian ad litem erf Mumtaz and Aniam minors.
(8) While decreeing the suit for possession of the premises the trial Court held that the defendants were not heirs of Naziruddin and after the death of Naziruddin, who admittedly was the tenant, their possession became both illegal and unauthorised. In the appeal that was filed against that decree the defendants who were minors were represented by Mohd. Yasin and Mohd. Yusuf as guardians ad litem. When during the pendency of the appeal in the District Court Mohd. Yasin died on March 3, 1972, an application was submitted on March 10, 1972 for appointing guardian ad litem of the minors for whom Mohd. Yasin had till his death been acting in that capacity. On that application Shri M. K. Chawla, Additional District Judge, ordered on March 15, 1972 that Sadiqun Nisa, widow of Mohd. Yasin, shall act as guardian of her minor children (Amir, Munawar and Hamida). By another order, dated March 18, 1972 it was directed that the name of Mohd. Yasin be struck off from the array of the appellants.
(9) After the dismissal of the appeal by the Additional District Judge the present second appeal was filed on May 10, 1972 on behalf of the defendants other than Mohd. Yasin, who had died during the pendency of the first appeal. Inadvertently in the memo of parties relating to the second appeal the name of Mohd. Yasin was mentioned as guardian ad litem for Amir, Munawar and Hamida minors. On November 22, 1972 an application was made on behalf of the appellants in which it was requested that name of Mst. Sadiqun Nisa be shown as the guardian ad litem of the above-named minors in place of Mohd. Yasin. It was stated that the error made in describing Mohd. Yasin as the guardian ad litem in the second appeal was unintentional and was merely typographical in character.
(10) The application made for appointing a guardian ad litem in place of Mohd. Yasin for three of the minors was not opposed before the first appellate court, and the mother of the minors was appointed as the guardian ad litem. In connection with the application made on November 22, 1972 it was not disputed before us that the second appeal on behalf of Amir, Munawar and Hamida minors was filed by Sadiqun Nisa by acting as their guardian ad litem. The mistake in showing the name of Mohd. Yasin as the guardian ad litem in the memo of parties relating to the second appeal being due to to inadvertence and in no way being intentional we have allowed the necessary correction to be made in the memo of parties.
(11) So far as the merits of the case are concerned the learned counsel for the appellants frankly conceded that in the second appeal he could not in any way assail the findings of fact given by the courts below and that after the death of the tenant the possession of the appellants ceased to be as licensees of Naziruddin and their possession could be regarded as illegal and unauthorised. It was, however, contended that the provisions of Order 32, rule 3, of the Code of Civil Procedure not having been strictly complied with the decree for possession, which was a joint one against the appellants, including the appellants who are still minors, became a nullity.
(12) In the grounds of appeal there was not even a reference to the provisions of Order 32. rule 3, of the Code of Civil Procedure and it was no where urged that non-compliance with any of the requirements of the said provision had caused any prejudice. It appears that when the second appeal came up for hearing before a Single Judge of this Court the learned Judge felt the implications of non-compliance with the provisions of Order 32, rule 3, of the Code of Civil Procedure required to be considered by a larger Bench and this gave a clue to the learned counsel for the appellants for the contention raised by him.
(13) Rule 3 of Order 32 of the Code of Civil Procedure was in the following terms:-
'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) 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'.
In its application to the then province of Punjab the rule was amended by substituting the following sub-rules for sub-rules (3) and (4) and the following sub-rules, numbered as sub-rules (6) and (7), were added:-
'(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 subrule (2), above. (4) The Court may at any time after institution of the suit call upon the plaintiff to furnish such a list, and, in default of compliance, may reject the plaint. (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 veryfying 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'.
For the Union territories of Delhi and Chandigarh and the States of Punjab and Haryana the rule as amended for Punjab applies.
(14) Thus where a defendant is a minor the Court on being satisfied of the fact of his minority has to appoint a proper person to be the guardian for the suit for such minor. An order for the appointment of a guardian for the suit can be obtained upon application in the name and on behalf of the minor or by the plaintiff. The amended rule 3 of Order 32 of the Cede of Civil Procedure also requires that 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. Such a list is to be regarded as an application by the plaintiff for appointment of a guardian for the suit for such minor.
(15) In Sangram Singh v. Election Tribunal, Kotah and another, : 2SCR1 their Lordships of the Supreme Court made the following observations with respect to that portion of the Code of Civil Procedure that deals with the trial of suits:-
'NOWa 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 thereforee 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'.
(16) While considering the question whether the provisions of Order 32, rule 3, of the Code of Civil Procedure are mandatory or directory, the above quoted observations of the Supreme Court have to be kept in view. Too technical a construction on the provisions of the said rule which does not leave room for reasonable elasticity of interpretation is, thereforee, not to be adopted, but at the same time it cannot be lost sight of that the procedure provided for ensuring that at the hearing of a suit the defendants who are minor are properly represented is designed to facilitate justice and that the means designed for furtherance of justice cannot be used to frustrate it. Where, thereforee, a decree is passed against a minor who is not properly represented at the hearing of the suit the decree has to be regarded as void and not merely voidable. In ram Chandra Arya v. Man Singh and another : 2SCR572 their Lordships of the Supreme Court observed that it was a well settled principle that if a decree was passed against a minor without appointment of a guardian the decree was nullity and the same principle was applicable to the case of a lunatic in view of rule 15 of Order 32 of the Code of Civil Procedure. In that case a suit had been filed against one Ram Lal for recovery of a certain amount without showing that the defendant was a lunatic and an ex-parte decree was obtained. In the execution of the said decree the house of the judgment-debtor was sold and a sale certificate was issued. Even after the sale the judgment-debtor continued living in the house and after some years died in that very house. Subsequently a suit was filed by the auction purchaser of the house for its possession and as admittedly the decree had been obtained against a lunatic without the lunatic being represented by any guardian the decree was held to be without jurisdiction and void.
(17) The position would be different where a minor defendant in a suit is properly represented but there is some non-compliance with the provisions of rule 3 of Order 32 of the Code of Civil Procedure, which non-compliance does not cause any prejudice. In that event in spite of the non-compliance with the provisions of rule 3 of Order 32 to a certain extent the decree against the minor can neither be regarded to be without jurisdiction or to be void.
(18) Under the provisions of rule 3 of Order 32 of the Code of Civil Procedure it is, of course, necessary that the court after satisfying itself of the fact of minority of a defendant should appoint a proper person to act as guardian for the suit for the minor. As was, however, observed by their Lordships of the Privy Council in Walian v. Banke Behari Pershad Singh I.L.R. 30 Calcutta 1021 that it is quite another thing to say that a defect in following the rules regarding appointment of guardian is necessarily fatal to the proceedings. In the case with which their Lordships were dealing the mother of the minors acted as guardian ad litem without being formally appointed and was recognised as guardian ad litem by the Court in the progress of the suit. In the circumstances it was held that after that recognition it was too late to dispute the appointment. In another case, Munshi Munnu Lal and another v. Ghulam Abbas and others 37 Ind App 77, the Privy Council took the view that the absence of an affidavit required by section 456 of the Code of Civil Procedure [which corresponded to sub-rule (6) of rule 3 of Order 32] did not affect the appointment of the guardian.
(19) The Lahore High Court in the case of Karam Chand and another v. Narinjan Singh A.I.R. 1938 Lah 709 came to the conclusion that where a person acts as the de facto guardian ad litem of a minor, the mere absence of an order formally appointing such person as the guardian ad litem is not fatal to the validity of the proceedings. The Punjab High Court in Atma Singh v. Shrimati Jangir Kaur 1959 Pun Law Rep 40 took the view that absence of notice to the minor regarding the appointment of his guardian and the absence of a formal order appointing guardian do not affect the validity of the proceedings.
(20) The learned counsel for the appellant relied upon certain observations in a decision of the Patna High Court reported as Ramchander Singh and another v. B. Gopi Krishna and others : AIR1957Pat260 in which it was observed that on the scheme of rule 3 of Order 32 and on the plain language of sub-rule (4) of rule 3 there is no doubt that sub-rule (4) of rule 3 of Order 32 is mandatory and imperative, and its terms must be strictly complied with. In a later decision of the same High Court, Ramachandra Pd. Singh and others v. Rampunit Singh and others : AIR1968Pat12 , the provisions of rule 3(4) of Order 32 were regarded to be mandatory and appointment of guardian ad-litem without notice to proposed guardian was considered to render the order passed against the minor without jurisdiction and to be null and void. The Bombay High Court in Diwalibai Damjibhai Bhatti v. Jaikumar Gopaldas Jain and others A.I.R. 1969 Born. 393 expressed the view that judicial procedure does not contemplate proceedings against a minor litigant without securing his proper representation before the Court and if a guardian of a minor neglects the minor's interest by failure to appear, normally in civil court a guardian is required to be appointed for purpose of litigation by the Court.
(21) In our opinion the provisions of rule 3 of Order 32 of the Code of Civil Procedure are directory in character. This does not mean that it is open to a Court to completely ignore its provisions. Where, however, adefendant in a suit is a minor and is effectively represented by a proper person as guardian for the suit then a mere defect in following the rule regarding appointment of guardian, in the absence of any prejudice having been caused, will not be fatal to the proceedings. It seems to us that the Patna High Court cases relied upon by the learned counsel for the appellants were decided on their own facts. If, however, by the use of the word 'mandatory' the learned Judges deciding the said cases meant that any non-compliance with the provisions of rule 3 of Order 32 of the Code of Civil Procedure will render the proceedings against a defendant who is a minor to be without jurisdiction and to be null and void, irrespective of the fact whether the minor was effectively represented and the non-compliance or irregularity did not cause any prejudice, then with very great respect such a view would be difficult to sustain. Whether or not the proceedings against a minor defendant can be regarded to be without jurisdiction and to be a nullity will depend upon the facts of each case. If a minor is effectively represented mere non-compliance with any of the provisions of rule 3 of Order 32 which does not cause prejudice will not render the proceedings to be either without jurisdiction or to be null and void.
(22) In the present case the defendants who were minors were effectively represented. The trial court recognised the father of Amir, Munawar and Hamida and the father of Mumtaz and Anjam as guardians ad litem in the progress of the suit, though no formal order appointing them as guardians for the suit for the defendants who were minors was passed. In the plaint there were specific averments about the guardians not having any interest adverse to the minors. It was also no one's case that Mohd. Yasin and Mohd. Yusuf had any interest adverse to the minors or were in any way negligent in safeguarding the interests of the minors. After the death of Mohd. Yasin the Additional District Judge made a specific order appointing Sadiqun Nisa to be guardian ad litem for her two daughters and a son. Under these circumstances the absence of a formal order appointing Mohd. Yasin and Mohd. Yusuf as guardians ad litem for the suit for the minors or the omissions to file a list of relatives with the plaint supported by affidavit or giving formal notice to the fathers of the defendants who were minor did not in any way cause any prejudice and the validity of the decree passed against the minors and others was in no way affected. The suit was rightly decreed for possession.
(23) There is no merit, whatsoever, in this second appeal. The appellants had no legal right to stay in the premises after the death of Naziruddin, whose licensees they could be regarded. They have, however, managed to remain in occupation of the premises for over seven years even after the death of Naziruddin by prolonging the proceedings and by other dilatory tactics. The appeal is accordingly dismissed with costs.