The provisions of Order 32, Rule 3 of the Code of Civil Procedure are mandatory. However, non-compliance does not automatically render the decision void. The decision can only be void if non-compliance resulted in prejudice or the person of unsound mind was not effectively represented.

Anita Chaudhry, J.

This revision is directed against the order dated 19.09.2015 passed by Civil Judge (Senior Division) (NRI Cases), Jalandhar, vide which the application filed by the petitioners under Section 114 read with Order 47, Rule 1 and Section 151 CPC seeking review of the order dated 03.03.2015 was dismissed. The petitioners have also assailed the order dated 03.03.2015 (Annexure P-2) as the application filed by the plaintiffs was allowed and respondent No.4 was permitted to be sued through the son as the next friend.

2. The question which has arisen in this petition primarily is whether the provisions of Order 32, Rule 3 of the Code of Civil Procedure are mandatory and whether the requirement thereof has been complied with.

3. It would be necessary to give few facts.

4. A suit was filed by the sons of Krishan Talwar against the brother and some others, seeking a declaration that the plaintiffs were owners and in possession of 1/3rd share each. A prayer for injunction was also made restraining defendants No.1 and 2 from interfering in their possession. One of the defendant namely, Meena Chhabra, was stated to be of unsound mind. She was impleaded as defendant without impleading the guardian or next friend. The contesting defendants namely Ashok Kumar and Dalip Kumar filed an application for taking the plaint off its record and for imposition of special cost upon the plaintiffs, as Meena Chhabra was of unsound mind and had been impleaded in her personal capacity without their being any guardian or next friend. It was pleaded that the plaintiffs had played fraud and had got ex parte proceedings against her.

5. The plaintiffs filed reply pleading that Meena Chhabra was residing under the care and custody of plaintiff No.1. It was pleaded that no fraud had been played upon the Court. It was submitted that Meena Chhabra was living under the care and custody of Ranjit Talwar (plaintiff No.1) and the application should be dismissed.

6. Thereafter, the plaintiffs filed an application under Order 32, Rule 1 CPC pleading that Meena Chhabra defendant No.4 was living under the care of Ranjit Talwar but in January, 2013 she started living with her son Rohan Chhabra. It was pleaded that she was having some mental problem for the last 20 years and in terms of Order 32 CPC the son be appointed as a guardian as he had no adverse interest against the mother and she may be allowed to be sued through the son Rohan Chhabra. The address of Rohan Chhabra was given and a note was appended that an affidavit had been attached.

7. In reply to this application, defendants No.1 and 2 pleaded that the plaintiffs were misusing the process of the Court and they had not come to the Court with clean hands and they had admitted that Meena Chhabra was of unsound mind and earlier they had pleaded that there was no need to appoint any guardian and Ranjit Talwar (plaintiff No.1) had forged and fabricated the signatures on the summons and Meena Chhabra was proceeded ex parte and the plaintiffs were claiming rights in the property and depriving Meena Chhabra of her property and fraud was being played with the Court. It was pleaded that Meena Chhabra was married and had children and Ranjit Talwar was not looking after her and she had never remained under his care or custody. It was pleaded that when she had been proceeded ex parte, therefore, the question of impleading her next friend did not arise. It was pleaded that Meena Chhabra was living in Delhi from the very beginning along with her son. It was pleaded that Rohan Chhabra, the son had no interest in the property and the son could not be the guardian of the mother and the application should be dismissed.

8. The trial Court decided both the applications vide a common order dated 03.03.2015 and allowed the application filed by the plaintiffs, permitting defendant No.3 to be sued through the next friend that is her son, Rohan. It noticed the fact that Meena Chhabra was of unsound mind and she could not