G. R. UDHWANI, J.

1. This petition is directed against the order dated 10th December, 2008 passed by the learned 2nd Additional Senior Civil Judge (S.D.) and Judicial Magistrate, First Class, Gandhinagar below Exh.124 in Regular Civil Suit No.419 of 1996, whereby the application of the petitioner, who was minor original defendant No.7 for allowing him to defend his case on attaining the age of majority, was rejected as belated, hearing of the suit having already commenced and evidence of defendants was being recorded; as also for want of power under Order-32, Rule-12 of the Code of Civil Procedure, 1908 (for short, "CPC").

2. There were in all 35 defendants, amongst whom, original contesting defendant Nos.31, 32, 33, 34 & 35 have chosen to oppose this petition by filing an affidavit-in-reply in response to the notice/Rule issued by this Court.

3. Learned Counsel for the petitioner has raised the following contentions :-

3.1 That the Trial Court ought to have allowed the minor to pursue the suit on attaining majority otherwise, the principle of natural justice stood violated.

3.2 Under Order-32, Rule-3(1) of CPC, the Trial Court was duty bound to appoint the guardian of minor-defendant and such appointment was terminable by retirement, removal or death; albeit no guardian came to be appointed; had it been appointed, on attaining the age of majority, the petitioner would have got an opportunity to represent his own case. Such right does not get dispensed with merely because the Trial Court failed to discharge its obligations under Order-32, Rule-3(1) of CPC.

3.3 Alternatively, while relying upon the decision rendered in Ambrish Kumar Tiwari v. Sita Ram Jhalani and Ors. (AIR 1998 RAJ 21), it was contended that in absence of appointment of guardian of the minor under Order-32, Rule-3(5) of CPC, the minor's interest was not properly represented and therefore, decree if any, would be against a person not a party to suit; thus without jurisdiction & therefore, defendant No.7 be allowed to defend the suit.

4. Respondent Nos.31, 32, 33, 34 & 35, through their constituted Power of Attorney, have raised the following contentions :-

4.1 That the minor-defendant No.7 attained age of majority on 15.06.2002 and application was made by him on 18.01.2008 and thus, object of the 7th defendant was not bona-fide, but the said defendant, who supports the case of the plaintiff, has resorted to delaying tactics by preferring such application.

4.2 That the suit was filed in the year 1996 and reply by the petitioner, through his mother being a natural guardian, was filed. Thereafter, they have not examined any witnesses, and as soon as the evidence of the plaintiff was over, the evidence of contesting defendants i.e. defendant Nos.18 to 20, is being adduced and thus, delaying tactic is resorted to by preferring frivolous application. It is contended that in that view of the matter, if the petitioner files a fresh written statement, the nature of suit will change.

4.3 That the properties were already sold to the respondents and mother of the original defendant No.7 represented the minor's interest in the sale deed itself; that he was co-owner along with other persons including his mother, none of whom objected to the sale and therefore, now at belated stage, such attempt by defendant No.7 to delay the proceedings, may be discouraged.

4.4 It was contended that since the suit by defendant No.7 to challenge the sale deed would have been time barred, his defending the suit at a belated stage would result into maintaining of a time barred suit.

4.5 That though no relief is prayed against defendant No.7, unnecessary application was filed to delay the matter.

5. To appreciate the controversy between the parties, it is necessary to examine relevant provisions of the CPC. As per Section-26 and Order-4 Rule-l of CPC, a suit is to be instituted/ commenced by presentation of a plaint or in such other manner as may be prescribed. Order-1, Rule-3 contemplates person who