Judgment:
ORDER
V.K. Jhanji, J.
1. In this revision petition, one of the defendants is impugning the order of the trial Court whereby his application, for dismissal of the suit for non-compliance of provisions of Order 32 Rule 3 of the Code of Civil Procedure, was declined.
2. In brief, the facts are that a suit for possession was filed by the plaintiffs (respondents No. 1 to 3 herein). The suit was filed against four defendants, who at that time were minors. Defendants, Ramesh Kumar and Rajesh Kumar were sued through their father, Satyvir Singh, whereas Jitender Kumar and Satender Kumar were sued through their father, Maya Chand. Maya Chand did not appear despite service. The Court then per force appointed a Court guardian to represent the minors. Later on, Maya Chand made an application to contest the suit on behalf of the minors. That application was allowed and now, these minors are being represented by their father, Maya Chand. Suit on behalf of Ramesh Kumar and Rajesh Kumar, by their father, Satyabir Singh, was also contested. During the pendency of the suit, Ramesh Kumar became major, whereafter he moved an application for removal of his guardian and sought permission to contest the suit. The trial Court allowed him to contest the suit, but did not permit him to file a fresh written statement as it was of the view that the written statement had already been filed on his behalf. Against the said order, Civil Revision No. 2060 of 1992 was filed in this Court, which was later on got dismissed as withdrawn by Ramesh Kumar (petitioner herein). At the time of dismissal of the revision petition, counsel for Ramesh Kumar made a statement before this Court that the petitions be dismissed as withdrawn so as to enable the petitioner to file a proper application before the trial Court. After its dismissal, an application was filed under Order 32, Rules 3, 3-A and 4 (3) of the Code of Civil Procedure, in which it was stated that the suit be dismissed as the plaintiffs have not filed the application for appointment of a Court-guardian, which is a mandatory provision, and that the period of limitation for pre-emption has already expired because the sale which is sought to be pre-empted in the suit is dated 29.3.1989. This application on contest, was dismissed by the trial Court with the finding that no prejudice has been caused to the minors for the non-compliance of the provisions, if any, but at the same time, plaintiffs were also asked to furnish the list of guardian of minor defendants. It is this order which is being challenged in the present revision petition.
3. Learned counsel for the petitioner contended that the trial Court ought to have dismissed the suit because of non-compliance of provisions of Order 32, Rule 3 and 4 of the Code of Civil Procedure, According to him, Sub-rules (2) and (3) of Rule 3 of Order 32 provide for making of an application for the appointment of guardian where defendant is a minor, but in this case, no such application was filed by the plaintiffs and, therefore, the guardian who acted for the minor had no authority to act as such. In support of this argument, he placed reliance upon a judgment of the division Bench of this Court reported as Gurpreet Singh v. Chatterbhui Goel, A.I.R. 1992 P&H; 95.
4. In reply, learned counsel for the respondents, submitted that suit against minors was contested through father, who had been doing so by taking all possible pleas in the written statement. According to the counsel, non-compliance of the provisions of Order 32 Rule 3 of the Code of Civil Procedure, has not caused any prejudice to the minors.
5. Having heard the learned counsel for the parties, I am of the view that there is no merit in the revision petition. The suit against the minor was contested through his father. The father, Satyabir Singh, appeared and filed written statement on behalf of his son, including the petitioner who was minor at that time. He took all possible pleas which under the circumstances he could take at the time of filing of the written statement. During the course of hearing of revision petition, I asked the counsel for the petitioner to point out as if any other plea could be raised by the defendants, which was not taken up by the father on behalf of the minors, He pointed out none. With the passage of time, petitioner having become major, moved an application to contest the suit on his own behalf as well as on behalf of the guardian. His application was allowed, but he was not allowed to file written statement as the Court was of the view that the father had been contesting the suit vigilantly on his behalf. In revision, this Court too did not interfere. In Gurpreet Singh's case (Supra) the Division Bench of this Court held that filing of an application for appointment of guardian as provided under Order 32 Rule 3 of the Code of Civil Procedure is a must and if an application is not made as provided under Order 32 rule 3, any guardian who may have acted for the minor, would not be clothed with the requisite authority to act as such. It further held that the consent that can be presumed is only if an application has been made, and notice issued to the proposed guardian. In this judgment, it has no-where been held that an application cannot be filed subsequent to the filing of the suit or during the pendency of the suit. The suit in question is pending decision. From the impugned order, I find that the trial Court has directed the plaintiffs to furnish the list of guardian of minors. This direction presumably has been given after issuing notice to the guardian who was so far acting on behalf of the minors and also for appointment of guardian, if any, as provided under Order 32 Rules 3 and 4 of the Code of Civil Procedure.
6. Faced with this situation, Mr. Mani Ram counsel for the petitioner, contended that if the list of guardian is taken to be an application for appointment of guardian, then the suit should be deemed to have been filed on the date when such an application or list was filed in Court. I am not prepared to accept this contention for the reason that when the suit was brought against the minors, it was filed within time. It does not matter if the defendant was major or minor for the purpose of limitation, as long as the suit is brought against a correct person. The question of appointment of a guardian is a separate matter and does not relate to the institution of the suit, but to the right of the guardian who acted upon on behalf of the person happened to be minors. Thus, I am of the view that it would not result in dismissal of the suit if an application was filed for making appointment guardian ad,litem of the minor defendants after the expiry of period of limitation for filing the suit.
7. For the reasons recorded above, the revision petition is dismissed with ho order as to costs.