Non-compliance with the mandatory provisions of Order 32 Rule 3 CPC makes the decree void and must also presume to have caused prejudice to the appellant.

Satish Kumar Mittal, J. - Plaintiffs Baldev Singh, Hardev Singh and Sher Singh have filed the instant appeal against the order dated 15.4.2003 passed by the Additional District Judge, Sangrur whereby after setting aside the judgment and decree of the trial Court, the matter has been remanded back for de novo trial after complying with the mandatory provisions of Order 32 Rule 3 CPC governing the appointment of a guardian for the minor defendants.

2. In this case, a suit for possession, declaration and permanent injunction was filed by the plaintiffs-appellants challenging the consent decree dated 17.10.1992 passed in Civil Suit No. 672 titled as "Sukhdev Singh and another v. Chinto", which was suffered by Smt. Chinto in favour of defendant No. 1 Sukhdev Singh and Balwinder Singh, the predecessor of defendants No. 2 to 5, and mutation sanctioned on the basis of the said decree as well as the sale deed executed by Balwinder Singh subsequently. Since Balwinder Singh had died before institution of the suit, therefore, his legal representatives i.e. Shiam Kaur, mother of Balwinder Singh, Amarjit Kaur, his widow, Rinku, his minor son and Rajo, his minor daughter, were impleaded as parties. The aforesaid two minors i.e. defendants No. 4 and 5 were impleaded under the guardianship of their mother Amarjit Kaur. It is the case of the plaintiffs that defendant No. 1 Sukhdev Singh and aforesaid Baldev Singh were not related to Smt. Chinto and the said decree was obtained by fraud and impression.

3. Before the trial Court though the minor defendants were sued through their mother being natural guardian but admittedly neither any application for appointment of the guardian under Order 32 Rule 3 CPC was filed nor the particulars of all the possible guardians and the requisite affidavit under Order 32 sub-rules (3) and (4) CPC were given/filed. Even certificate to the effect as to who were the persons who had no interest in the subject matter adverse to the interest of the minors, was not filed. Even no formal order for appointment of the guardian was passed. The trial Court decreed the suit of the plaintiffs, but the first Appellate Court while following the Division Bench decision of this Court in Gurpreet Singh v. Chatterbhuj Goel, AIR 1992 Punjab and Haryana 95, set aside the judgment of the trial Court and remanded the matter for de novo trial, while following as under :-

"The lower Court file shows that there is no affidavit filed by the plaintiffs as required under Order 32 CPC. No application for the appointment of a guardian in respect of minor defendants had been moved by the plaintiffs. No certificate to the effect as to who were the persons who had no interest in the subject matter, adverse to the interest of minor etc. was filed. It has certainly caused prejudice to the minor defendants Rinku and Rajo against whom the decree of declaration, permanent injunction and possession has been passed by the learned lower Court. In Gurpreet Singh v. Chattterbhuj Goel, AIR 1992 P&H 95, a Division Bench of the Honble Punjab and Haryana High Court has held where in a suit against the minor, application under Rule 3 of Order 32 CPC for the appointment of guardian was not made by the plaintiffs, the person who acted on behalf of the minor, acted without authority prejudice to the minor is presumed. The presumption as to consent under Rule 4(3), cannot arise. In that case the minors father who acted on behalf of minor defendant, was held to have acted without authority. No law contrary to the one cited by the applicants, has been shown by the respondents. The application dated 20.3.2003 is consequently accepted. The lower Court findings on all the issues are set aside and the case is remanded back for fresh decision on all the issues after complying with the mandatory provisions of Order 32 Rule 3 CPC governing the appointment of a guardian for the minor defendants. The trial before the lower Court shall commence de novo and the plaintif