HARYANA AT CHANDIGARH v. Pronounced fully/ ope

Initially, the minor defendant was Initia as proceeded against ex parte and an ex parte decr decree dated 23.03.1991 came to b was, to be passed. The said decree was however, set asid aside in appeal and the matter wa , Shri r was remanded. Upon remand, Shr Satish Kumar, Ad r, Advocate, was appointed as gua guardian ad litem to represent th t the minor defendant dant by the trial court.

4. The minor defendant, through The dian, gh his Court-appointed guardian contested the su e suit by raising preliminary object bjections and denying the plaintiff’ tiff’s alleged superior rior right of pre-emption. He also c so claimed reimbursement of stamp and registration tion charges along with ₹2,000 a 00 as improvement expenses, and sought dismissal ssal of the suit.

5. Findings of Trial Court : Upon app Findi appreciation of the evidence led b d by the parties, the l he learned trial Court decreed the the suit on 12.06.1993, holding tha the plaintiff, bein being a co-sharer, had a superior rig r right of pre-emption.

6.1 Findings of Appellate Court : Aggrie Findi grieved against the judgment of th f the trial Court, the d e defendant preferred an appeal th al through his mother, Smt. Brahm Devi, instead of t n. of the Court-appointed guardian.

6.2 Applications were moved for perm App ermission to prosecute the appea through the mot mother, and for removal of the gua guardian ad litem. Both application were dismissed b ed by the learned first Appellate C te Court. The learned first Appellat Court held that in at in view of Order 32 Rule 3(5) CPC y the ) CPC, the guardian appointed by the trial Court cont ontinued to represent the minor inor throughout all stages of th f the proceedings and and, therefore, the appeal filed iled through the mother was no maintainable.

6.3 It was further observed that by vir It w virtue of the Haryana Amendmen to Section 15 of t of the Punjab Pre-emption Act, 191 , 1913, the plaintiff had lost the righ of pre-emption d ion during pendency of the appea peal. Nevertheless, the appeal wa l was dismissed solely lely on the ground of non-maintaina ainability. JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document Page N: 2 of 9 Pages 996 RSA No.2800 of 1996

7. Against the aforesaid judgments of Agai ts of the Courts below, the presen appeal has been een filed by the vendee-defendant ant Sanjay (minor) through mothe Smt. Brahma De Devi.

8. Appellant’s Contentions :(i) The ap Appe e appellant contends that the firs Appellate Court urt erred in holding the appeal fi al filed through the mother as no s not maintainable. It . It is argued that the mother, her, being a natural guardian, i n, is competent to rep o represent the minor, as recognize nized in Githa Hariharan v. Reserve Bank of India, AI a, AIR 1999 SC 1149, and Jijabai Vi an & ai Vithalrao Gajre v. Pathankhan & Ors., 1970 (2) SCC ) SCC 717. (ii) It is further submitted that since It is nce the first Appellate Court itsel itself observed that th t the plaintiff had lost the right of p of pre-emption due to the statutor amendment, and and the plaintiff did not challenge ht to enge that finding, the suit ought to have been dismis smissed. (iii) It is contended further that since th It is e the vendor was initially impleaded but later given up n up, the plaintiff failed to prove ab ve absence of notice of the intended sale, and therefo refore, the suit is liable to be dism g on dismissed on this ground, relying on Jhabbar Singh h (deceased) through legal heirs a (AIR eirs and others v. Jagtar Singh (AIR 4). 2023 SC 2074).

9. Respondent’s Contentions :(i)The Resp The respondent argues that unde Order 32 Rule 3( e 3(5) CPC, the Court-appointed gua t the guardian continues throughout the proceedings unle unless formally removed, and since , the ince no such removal took place, the appeal filed throu hrough the mother was not maintai intainable. (ii) It is further contended that the It is pre- the finding regarding loss of pre emption right is i t is incorrect in view of Shyam Sund Anr. Sunder & Anr. v. Ram Kumar & Anr 2001 (8) SCC 24 24, as the right is required to subsi ubsist only till the decree of the tria Court. (iii) Lastly, it is submitted that even Last , the ven without cross-objections, the respondent can can challenge adverse findings und , and under Order 41 Rule 33 CPC, and therefore, no inte interference with the decree is war warranted. JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document Page N: 3 of 9 Pages 996 RSA No.2800 of 1996

10. Substantial Questions of Law:The fo Subs he following substantial questions o ns of law arise for cons consideration: (i) Whether t er the appeal filed on behalf of th of the minor defendant through hi h his mother was main maintainable in law? (ii) Whether t er the plaintiff–respondent lost the t the right of pre-emption in view o w of the Haryana Am Amendment to Section 15 of the the Punjab Pre-emption Act durin pendency of the the appeal? (iii) Whether r er respondent can be allowed to c to challenge adverse finding agains him without filing filing appeal or cross-objections? (iv) Whether t er the suit is vitiated on account unt of non-joinder of a necessar party, namely the y the vendor? Consideration by n by this Court :

11. Re: Maintainability of Appeal : Or Re: M Order 32 Rule 3(5) CPC postulate that a guardian a ian appointed for a minor shall con or in l continue to represent the minor in all proceedings gs arising out of the suit unless ated. ess his appointment is terminated However, the pro provision cannot be construed in is in isolation.

12. A pe perusal of the scheme of Order 3 er 32 CPC makes it evident that it at its primary object i ct is to safeguard the interests o sts of a minor, which remains th s the paramount cons onsideration for the Court at all all stages of the proceedings. Th . The procedural provi rovisions are thus required to be o be interpreted in a manner tha advances, and no d not defeats, the cause of the mino minor.

13. In the present case, the learned In t ned first Appellate Court, despit noticing that the the plaintiff had lost the right of pt an of pre-emption, failed to adopt an approach consist nsistent with the welfare of the min minor defendant. It is an admitted position on recor ecord that Shri Satish Kumar, Advoc dvocate, who had been appointed a ed as the Court guardi ardian by the trial Court, did not inor. not effectively represent the minor Not only was no s no evidence led on behalf of the m he minor before the trial Court, bu , but even at the app appellate stage, the said guardia s to ardian failed to take any steps to challenge the dec decree. JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document Page N: 4 of 9 Pages 996 RSA No.2800 of 1996

14. In these circumstances, when th In t the appellant moved a specifi ecific application seek eeking permission to prosecute t ther, te the appeal through his mother coupled with an h an application for removal of th of the existing Court guardian and appointment of of the mother as guardian, the le e learned first Appellate Court wa duty-bound to co to consider the same in the light o ht of the minor’s best interest. Th . The rejection of thes these applications, without due reg regard to the failure of the existin isting guardian and the the need to protect the minor’s rig f the s rights, renders the approach of the first Appellate te Court not only erroneous b s but also perverse and legall unsustainable.

15. The issue is not res integra. The Fu The High e Full Bench of the Allahabad High Court in Raj Be Behari Lal & Ors. v. Dr. Mahabir P l 310, bir Prasad & Ors., AIR 1956 All 310 while interpretin reting Order 32 Rule 3(5) CPC, he ly an , held that although ordinarily an appeal on behal ehalf of a minor is to be filed thro d, an through the guardian on record, an appeal filed by an by another person can be treated as d as competent, if it is accompanied by an application tion seeking removal of the existing sting guardian and appointment of t of a new guardian, su rt. n, subject to approval of the Court.

16. hus, the legal position that emer Thus n ad merges is that while a guardian ad litem, once app appointed, continues to represent sent the minor throughout the li e lis unless removed ved, the Court retains the powe ower to substitute such guardian whenever circum rcumstances so warrant. The proc t be procedural requirement cannot be applied rigidly so ly so as to prejudice the interest of t of the minor.

17. Further, in Kankali Vava of Anchuth Furt an of chuthayyil v. Nelayudhan Soman of Rantuthayyil Hou l House, AIR 1961 Ker 208, it has be s been held that where the guardian ad litem fails to to act and another person files an inor, s an appeal on behalf of the minor the removal of t of the guardian can, in appropriate n the riate cases, be inferred even in the absence of a form formal order.

18. Applying the aforesaid principles to App s to the facts of the present case, i se, it is evident that th at the Court guardian failed to disch ischarge his duties and did not take any steps to pro protect the interest of the minor d or defendant, including the filing o ng of an appeal. In suc such a situation, the learned first A tified irst Appellate Court was not justified JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document Page N: 5 of 9 Pages 996 RSA No.2800 of 1996 in rejecting the the application filed by the appella pellant through his mother seekin substitution of th of the guardian.

19. Accordingly, the order of the first A Acco st Appellate Court rejecting the said applications is se is set aside, and it is held that the a the appeal filed through the mothe of the minor defe defendant was competent and main maintainable.

20. Re: Effect of Amendment to Section Re: E ction 15 : The learned first Appellat Court further err r erred in holding that the plaintiff h tiff had lost the right of pre-emption due to the Harya aryana Amendment to Section 15 of 5 of the Punjab Pre-emption Act.

21. The issue stands conclusively set The settled by the judgment of the Hon’ble Supreme eme Court in Shyam Sunder & Anr 01(8) Anr. v. Ram Kumar & Anr. 2001(8) SCC 24,wherein ein it has been held that a pre-em t on emptor must establish his right on the date of sale, ale, on the date of institution of the f the suit and on the date of passin of the decree by e by the trial Court. It has further b er been held that loss of such righ subsequent to th o the decree of the trial Court does oes not affect the decree unless th s the amendment is re is retrospective.

22. In the present case, the sale too In th took place in 1989, the suit wa instituted in 199 1990 and decreed in 1993, wher hereas the amendment came into force in 1995 and and is admittedly prospective.

23. Consequently, the right of the pla Cons plaintiff stood crystallized on the date of decree ree of the trial Court and could n ld not have been defeated durin pendency of the the appeal.

24. Re : Challenge to adverse finding aga Re : C g against respondent without appea or cross-objection ctions : The contention raised on t the on behalf of the appellant that the respondent–plain plaintiff is precluded from challen f the llenging the adverse finding of the first Appellate Co e Court, to the effect that he had l ad lost the right of pre-emption, fo n, for want of cross-ob objections or a separate appeal, is l, is devoid of merit.

25. Order 41 Rule 33 CPC confers wide Orde n the wide discretionary powers upon the Appellate Court urt to pass any decree or make a ke any order, which ought to have been passed, and , and such power can be exercised sed notwithstanding that the appea JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document Page N: 6 of 9 Pages 996 RSA No.2800 of 1996 is confined to a p o a part of the decree. The provisio vision further enables the Appellat Court to grant nt appropriate relief in favour o r of any of the parties, includin respondents, eve , even in the absence of any appeal eal or cross-objections by them.

26. The object of the provision is to en The to enable the Court to do complete justice between een the parties and to avoid multip ultiplicity of proceedings. The powe is not circumscri scribed by procedural technicalitie lities and can be invoked whereve the circumstance ances of the case so warrant.

27. In the present case, once the In t he appeal was preferred by th defendant, the e he entire matter became open b . The n before the Appellate Court. The respondent–plain plaintiff was, therefore, well within ithin his right to support the decree and to assail any any adverse finding recorded again ross- gainst him, even without filing cross objections.

28. Accordingly, the objection raised b Acco r the ed by the learned counsel for the appellant in this r this regard is rejected.

29. Re: Non-joinder of Necessary Party Re: N arty : However, a more fundamenta issue arises in t in the present case, which goes t . The es to the root of the matter. The plaintiff, in his p is plaint, specifically pleaded that hat no prior notice of the sale had been given by th y the vendor. Despite this, the ven ded, vendor, though initially impleaded was subsequentl ently given up by the plaintiff. This This assumes significance in view o w of the specific plea lea taken by the plaintiff that the s the sale deed had been executed b d by the vendor witho ithout serving any prior notice upon upon him, as required under law.

30. In such circumstances, the presenc In su sence of the vendor as a defendan was indispensab nsable for proper adjudication of of the controversy. The question whether notice tice was given or not, which form forms the very foundation of th f the plaintiff’s claim f im for pre-emption, could not have ed in have been effectively determined in the absence of t of the vendor. Therefore, the act act of giving up the vendor render the suit fundame amentally defective.

31. It is well settled that the right of pr It is f pre-emption is a weak right and i nd is to be strictly con construed. The Hon’ble Supreme C e Court in Bishan Singh and others JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document Page N: 7 of 9 Pages 996 RSA No.2800 of 1996 v. Khazan Singh a ngh and another, AIR 1958 SC 838 t the 38, has authoritatively held that the right of pre-em emption is not a right to the the property itself but a right o t of substitution, and and being a weak right, it can be d eans. be defeated by all legitimate means Consequently, t y, the plaintiff is required to s to strictly establish all condition itions precedent to sus sustain such a claim.

32. The effect of non-joinder of the ven The vendor in a suit for pre-emption ha n has also been cons considered by the Hon’ble Supr Supreme Court Singh in Jhabbar Singh (deceased) throu hrough LRs & Ors. v. Jagtar Singh ngh, AIR 2023 SC 2074. It has been held that a nece necessary party is one without w n be t whom no effective order can be passed, and in c in cases where compliance with s ith statutory requirements, such a ch as notice by the ven vendor, is in issue, the presence o ce of the vendor becomes essentia for complete and and final adjudication of the disput spute.

33. Though Order 1 Rule 9 CPC pro Thou t be provides that a suit shall not be defeated by reas reason of non-joinder of parties, th s, the said principle does not appl where the non on-joinder pertains to a necessar r an sary party. The Court is under an obligation to en ensure that all parties whose pre presence is essential for effectiv adjudication are are before it, and this power is reinf PC. reinforced by Order 1 Rule 10 CPC.

34. In the present case, despite specifi In th ecifically alleging that no notice had been given by th y the vendor, the plaintiff chose to ty. In e to give up the vendor as a party. In the absence of of the vendor, the issue relating ting to notice could not have been conclusively det determined, thereby rendering t ng the suit incapable of effectiv adjudication.

35. Accordingly, it is held that the non Acco on-joinder of the vendor constitute a fatal defect, an t, and the suit, as framed, is not mai maintainable. CONCLUSION

36. In view of the above discussion, this In vi this Court holds that: (i) The learned ed first Appellate Court erred in d in dismissing the appeal as no maintainable; JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document Page N: 8 of 9 Pages 996 RSA No.2800 of 1996 (ii) The finding r ing regarding loss of right of pre pre-emption due to amendment i nt is legally unsustaina tainable; (iii) However, th r, the suit itself is liable to fail o ail on account of non-joinder of of a necessary party, rty, namely the vendor.

37. Consequently, the present appeal Cons eal is allowed. The judgments and decrees passed ed by both the Courts below are are set aside. The suit filed by th y the plaintiff–respond ondent is dismissed with costs thro throughout.

01.04.2026 Jiten Whe Whe hether speaking/reasoned hether reportable : Yes/No : Yes/No Uploaded on : 01.04.2026 Uplo (DEEPAK GUPTA) JUDGE JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document Page N: 9 of 9 Pages