RSA No.2800 of 1996 IN THE HIG Sanjay Kumar (M Chandgi Ram CORAM: HON’BL Argued by:- Mr. For t Mr. For t DEEPAK GUPTA, The vendee–defenda passed by the C emption institute the learned tria preferred by the on 26.08.1996. 2. Facts appellant, who w kanal 12 marla consideration of in the suit prope that no prior no vendor. 996 Page N: 1 of 9 Pages HIGH COURT OF PUNJAB AND HAR RSA No. 2800 of 1996(O r (Minor) Versus Reserved on: 23.03.202 Pronounced on: 01.04. Pronounced fully/ ope N’BLE MR. JUSTICE DEEPAK GUPTA Mr. D.S. Nirban, Advocate For the appellant. Mr. R.S. Sangwan, Advocate For the respondent. TA, J. The present Regular Second Appe ndant, Sanjay Kumar (minor), assai e Courts below, whereby the suit ituted by the plaintiff–respondent trial Court vide judgment dated the defendant was dismissed by t cts : The factual matrix is large ho was a minor at the relevant tim arla by way of a registered sale n of ₹34,000/-. The plaintiff–respon operty, instituted a suit for pre-em r notice of the intended sale had ages HARYANA AT CHANDIGARH 96(O&M) …Appellan …Responden .2026 .04.2026 operative part: Fully PTA Appeal has been preferred by the ssailing the judgments and decree suit for possession by way of pre ent Chandgi Ram, was decreed b ated 12.06.1993, and the appea by the learned first Appellate Cour argely undisputed. The defendant t time, purchased land measuring 7 sale deed dated 08.06.1989 for pondent, claiming to be a co-share emption on 06.06.1990 on the ple had been served upon him by the llant dent the crees pre- d by peal ourt ant– ing 7 for a harer plea y the JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document RSA No.2800 of 1996 3. Initia an ex parte decr however, set asid Satish Kumar, Ad minor defendant 4. The contested the su alleged superior and registration sought dismissal 5. Findi the parties, the l the plaintiff, bein 6.1 Findi trial Court, the d Devi, instead of t 6.2 App through the mot were dismissed b Court held that in trial Court cont proceedings and maintainable. 6.3 It w to Section 15 of t of pre-emption d dismissed solely 996 Page N: 2 of 9 Pages Initially, the minor defendant was decree dated 23.03.1991 came to b aside in appeal and the matter wa r, Advocate, was appointed as gua dant by the trial court. The minor defendant, through e suit by raising preliminary object rior right of pre-emption. He also c tion charges along with ₹2,000 a ssal of the suit. Findings of Trial Court : Upon app he learned trial Court decreed the being a co-sharer, had a superior rig Findings of Appellate Court : Aggrie e defendant preferred an appeal th of the Court-appointed guardian. Applications were moved for perm mother, and for removal of the gua ed by the learned first Appellate C at in view of Order 32 Rule 3(5) CPC ontinued to represent the minor and, therefore, the appeal filed It was further observed that by vir of the Punjab Pre-emption Act, 191 ion during pendency of the appea lely on the ground of non-maintaina ages as proceeded against ex parte and to be passed. The said decree was r was remanded. Upon remand, Shr guardian ad litem to represent th gh his Court-appointed guardian bjections and denying the plaintiff’ so claimed reimbursement of stamp 00 as improvement expenses, and appreciation of the evidence led b the suit on 12.06.1993, holding tha r right of pre-emption. grieved against the judgment of th al through his mother, Smt. Brahm n. ermission to prosecute the appea guardian ad litem. Both application te Court. The learned first Appellat ) CPC, the guardian appointed by the inor throughout all stages of th iled through the mother was no virtue of the Haryana Amendmen , 1913, the plaintiff had lost the righ peal. Nevertheless, the appeal wa ainability. and was, , Shri t the dian, tiff’s tamp and d by that f the hma peal tions llate y the f the not ment right l was JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document RSA No.2800 of 1996 7. Agai appeal has been Smt. Brahma De 8. Appe Appellate Court maintainable. It competent to rep Bank of India, AI Ors., 1970 (2) SCC (ii) It is observed that th amendment, and have been dismis (iii) It is but later given up sale, and therefo Jhabbar Singh 2023 SC 2074). 9. Resp Order 32 Rule 3( proceedings unle appeal filed throu (ii) It is emption right is i 2001 (8) SCC 24 Court. (iii) Last respondent can therefore, no inte 996 Page N: 3 of 9 Pages Against the aforesaid judgments of een filed by the vendee-defendant Devi. Appellant’s Contentions :(i) The ap urt erred in holding the appeal fi . It is argued that the mother, o represent the minor, as recognize a, AIR 1999 SC 1149, and Jijabai Vi ) SCC 717. It is further submitted that since t the plaintiff had lost the right of p and the plaintiff did not challenge smissed. It is contended further that since th n up, the plaintiff failed to prove ab refore, the suit is liable to be dism h (deceased) through legal heirs a 4). Respondent’s Contentions :(i)The e 3(5) CPC, the Court-appointed gua unless formally removed, and since hrough the mother was not maintai It is further contended that the t is incorrect in view of Shyam Sund 24, as the right is required to subsi Lastly, it is submitted that even can challenge adverse findings und interference with the decree is war ages ts of the Courts below, the presen ant Sanjay (minor) through mothe e appellant contends that the firs al filed through the mother as no her, being a natural guardian, i nized in Githa Hariharan v. Reserve ai Vithalrao Gajre v. Pathankhan & nce the first Appellate Court itsel of pre-emption due to the statutor enge that finding, the suit ought to e the vendor was initially impleaded ve absence of notice of the intended dismissed on this ground, relying on eirs and others v. Jagtar Singh (AIR The respondent argues that unde guardian continues throughout the ince no such removal took place, the intainable. the finding regarding loss of pre Sunder & Anr. v. Ram Kumar & Anr ubsist only till the decree of the tria ven without cross-objections, the under Order 41 Rule 33 CPC, and warranted. sent ther first s not n, is serve an & itself utory ht to ded nded g on (AIR nder t the , the pre- Anr. trial , the , and JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document RSA No.2800 of 1996 10. Subs law arise for cons (i) Whether t mother was main (ii) Whether t the Haryana Am pendency of the (iii) Whether r him without filing (iv) Whether t party, namely the Consideration by 11. Re: M that a guardian a all proceedings However, the pro 12. A pe primary object i paramount cons procedural provi advances, and no 13. In t noticing that the approach consist position on recor the Court guardi Not only was no even at the app challenge the dec 996 Page N: 4 of 9 Pages Substantial Questions of Law:The fo consideration: er the appeal filed on behalf of th maintainable in law? er the plaintiff–respondent lost the Amendment to Section 15 of the the appeal? er respondent can be allowed to c filing appeal or cross-objections? er the suit is vitiated on account y the vendor? n by this Court : Re: Maintainability of Appeal : Or ian appointed for a minor shall con gs arising out of the suit unless provision cannot be construed in is perusal of the scheme of Order 3 ct is to safeguard the interests o onsideration for the Court at all rovisions are thus required to be d not defeats, the cause of the mino In the present case, the learned the plaintiff had lost the right of nsistent with the welfare of the min ecord that Shri Satish Kumar, Advoc ardian by the trial Court, did not s no evidence led on behalf of the m appellate stage, the said guardia decree. ages he following substantial questions o of the minor defendant through hi t the right of pre-emption in view o the Punjab Pre-emption Act durin to challenge adverse finding agains unt of non-joinder of a necessar Order 32 Rule 3(5) CPC postulate l continue to represent the minor in ess his appointment is terminated in isolation. er 32 CPC makes it evident that it sts of a minor, which remains th all stages of the proceedings. Th o be interpreted in a manner tha minor. ned first Appellate Court, despit of pre-emption, failed to adopt an minor defendant. It is an admitted dvocate, who had been appointed a not effectively represent the minor he minor before the trial Court, bu ardian failed to take any steps to ns of h his w of uring ainst ssary lates or in ated. at its s the . The that spite pt an itted ed as inor. , but s to JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document RSA No.2800 of 1996 14. In t application seek coupled with an appointment of duty-bound to co rejection of thes guardian and the first Appellate unsustainable. 15. The Court in Raj Be while interpretin appeal on behal appeal filed by an by an application new guardian, su 16. Thus litem, once app unless removed whenever circum applied rigidly so 17. Furt Rantuthayyil Hou ad litem fails to the removal of t absence of a form 18. App is evident that th any steps to pro an appeal. In suc 996 Page N: 5 of 9 Pages In these circumstances, when th eeking permission to prosecute t h an application for removal of th of the mother as guardian, the le to consider the same in the light o these applications, without due reg the need to protect the minor’s rig te Court not only erroneous b The issue is not res integra. The Fu Behari Lal & Ors. v. Dr. Mahabir P reting Order 32 Rule 3(5) CPC, he ehalf of a minor is to be filed thro by another person can be treated as tion seeking removal of the existing n, subject to approval of the Court. hus, the legal position that emer appointed, continues to represent ved, the Court retains the powe rcumstances so warrant. The proc ly so as to prejudice the interest of t Further, in Kankali Vava of Anchuth l House, AIR 1961 Ker 208, it has be to act and another person files an of the guardian can, in appropriate formal order. Applying the aforesaid principles to at the Court guardian failed to disch protect the interest of the minor d such a situation, the learned first A ages the appellant moved a specifi te the appeal through his mother of the existing Court guardian and e learned first Appellate Court wa ht of the minor’s best interest. Th regard to the failure of the existin s rights, renders the approach of the s but also perverse and legall e Full Bench of the Allahabad High bir Prasad & Ors., AIR 1956 All 310 , held that although ordinarily an through the guardian on record, an d as competent, if it is accompanied sting guardian and appointment of rt. merges is that while a guardian ad sent the minor throughout the li ower to substitute such guardian procedural requirement cannot be of the minor. chuthayyil v. Nelayudhan Soman of s been held that where the guardian s an appeal on behalf of the minor riate cases, be inferred even in the s to the facts of the present case, i ischarge his duties and did not take or defendant, including the filing o irst Appellate Court was not justified ecific ther, and was . The isting f the gally High l 310, ly an d, an nied t of a n ad e lis rdian t be an of rdian inor, n the se, it take ng of tified JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document RSA No.2800 of 1996 in rejecting the substitution of th 19. Acco applications is se of the minor defe 20. Re: E Court further err due to the Harya 21. The Hon’ble Supreme SCC 24,wherein the date of sale, of the decree by subsequent to th amendment is re 22. In th instituted in 199 force in 1995 and 23. Cons date of decree pendency of the 24. Re : C or cross-objection respondent–plain first Appellate Co want of cross-ob 25. Orde Appellate Court been passed, and 996 Page N: 6 of 9 Pages the application filed by the appella of the guardian. Accordingly, the order of the first A is set aside, and it is held that the a defendant was competent and main Re: Effect of Amendment to Section r erred in holding that the plaintiff h aryana Amendment to Section 15 of The issue stands conclusively set eme Court in Shyam Sunder & Anr ein it has been held that a pre-em ale, on the date of institution of the e by the trial Court. It has further b o the decree of the trial Court does is retrospective. In the present case, the sale too 1990 and decreed in 1993, wher and is admittedly prospective. Consequently, the right of the pla ree of the trial Court and could n the appeal. Re : Challenge to adverse finding aga ctions : The contention raised on plaintiff is precluded from challen e Court, to the effect that he had l objections or a separate appeal, is Order 41 Rule 33 CPC confers wide urt to pass any decree or make a , and such power can be exercised ages pellant through his mother seekin st Appellate Court rejecting the said the appeal filed through the mothe maintainable. ction 15 : The learned first Appellat tiff had lost the right of pre-emption 5 of the Punjab Pre-emption Act. settled by the judgment of the Anr. v. Ram Kumar & Anr. 2001(8) emptor must establish his right on f the suit and on the date of passin er been held that loss of such righ oes not affect the decree unless th took place in 1989, the suit wa hereas the amendment came into plaintiff stood crystallized on the ld not have been defeated durin g against respondent without appea on behalf of the appellant that the llenging the adverse finding of the ad lost the right of pre-emption, fo l, is devoid of merit. wide discretionary powers upon the ke any order, which ought to have sed notwithstanding that the appea eking said other llate ption the 01(8) t on ssing right s the was into the uring ppeal t the f the n, for n the have peal JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document RSA No.2800 of 1996 is confined to a p Court to grant respondents, eve 26. The justice between is not circumscri the circumstance 27. In t defendant, the e respondent–plain and to assail any objections. 28. Acco appellant in this r 29. Re: N issue arises in t plaintiff, in his p been given by th was subsequentl the specific plea the vendor witho 30. In su was indispensab whether notice plaintiff’s claim f the absence of t the suit fundame 31. It is to be strictly con 996 Page N: 7 of 9 Pages o a part of the decree. The provisio nt appropriate relief in favour o , even in the absence of any appeal The object of the provision is to en een the parties and to avoid multip scribed by procedural technicalitie ances of the case so warrant. In the present case, once the he entire matter became open b plaintiff was, therefore, well within any adverse finding recorded again Accordingly, the objection raised b this regard is rejected. Re: Non-joinder of Necessary Party in the present case, which goes t is plaint, specifically pleaded that y the vendor. Despite this, the ven ently given up by the plaintiff. This lea taken by the plaintiff that the s ithout serving any prior notice upon In such circumstances, the presenc nsable for proper adjudication of tice was given or not, which form im for pre-emption, could not have of the vendor. Therefore, the act amentally defective. It is well settled that the right of pr construed. The Hon’ble Supreme C ages vision further enables the Appellat r of any of the parties, includin eal or cross-objections by them. to enable the Court to do complete ultiplicity of proceedings. The powe lities and can be invoked whereve he appeal was preferred by th n before the Appellate Court. The ithin his right to support the decree gainst him, even without filing cross ed by the learned counsel for the arty : However, a more fundamenta es to the root of the matter. The hat no prior notice of the sale had vendor, though initially impleaded This assumes significance in view o the sale deed had been executed b upon him, as required under law. sence of the vendor as a defendan of the controversy. The question forms the very foundation of th have been effectively determined in act of giving up the vendor render f pre-emption is a weak right and i e Court in Bishan Singh and others llate ding plete ower rever the . The cree ross- r the ental . The had ded, w of d by ant stion f the ed in ders nd is thers JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document RSA No.2800 of 1996 v. Khazan Singh a right of pre-em substitution, and Consequently, t precedent to sus 32. The also been cons (deceased) throu held that a nece passed, and in c notice by the ven for complete and 33. Thou defeated by reas where the non obligation to en adjudication are 34. In th been given by th the absence of conclusively det adjudication. 35. Acco a fatal defect, an CONCLUSION 36. In vi (i) The learned maintainable; 996 Page N: 8 of 9 Pages ngh and another, AIR 1958 SC 838 emption is not a right to the and being a weak right, it can be d y, the plaintiff is required to s sustain such a claim. The effect of non-joinder of the ven considered by the Hon’ble Supr hrough LRs & Ors. v. Jagtar Singh necessary party is one without w in cases where compliance with s vendor, is in issue, the presence o and final adjudication of the disput Though Order 1 Rule 9 CPC pro reason of non-joinder of parties, th on-joinder pertains to a necessar ensure that all parties whose pre are before it, and this power is reinf In the present case, despite specifi y the vendor, the plaintiff chose to of the vendor, the issue relating determined, thereby rendering t Accordingly, it is held that the non t, and the suit, as framed, is not mai In view of the above discussion, this ed first Appellate Court erred in ages 38, has authoritatively held that the the property itself but a right o be defeated by all legitimate means to strictly establish all condition vendor in a suit for pre-emption ha Supreme Court in Jhabbar Singh ngh, AIR 2023 SC 2074. It has been t whom no effective order can be ith statutory requirements, such a ce of the vendor becomes essentia spute. provides that a suit shall not be s, the said principle does not appl sary party. The Court is under an presence is essential for effectiv reinforced by Order 1 Rule 10 CPC. ecifically alleging that no notice had e to give up the vendor as a party. In ting to notice could not have been ng the suit incapable of effectiv on-joinder of the vendor constitute maintainable. this Court holds that: d in dismissing the appeal as no t the t of eans. itions n has Singh been n be ch as ntial t be apply r an ctive PC. had ty. In been ctive tutes not JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document RSA No.2800 of 1996 (ii) The finding r legally unsustaina (iii) However, th necessary party, 37. Cons decrees passed plaintiff–respond 01.04.2026 Jiten Whe Whe Uplo 996 Page N: 9 of 9 Pages ing regarding loss of right of pre tainable; r, the suit itself is liable to fail o rty, namely the vendor. Consequently, the present appeal ed by both the Courts below are ondent is dismissed with costs thro hether speaking/reasoned : Yes/No hether reportable : Yes/No Uploaded on : 01.04.2026 ages pre-emption due to amendment i ail on account of non-joinder of eal is allowed. The judgments and are set aside. The suit filed by th throughout. (DEEPAK GUPTA) JUDGE nt is of a and y the JITEN SHARMA 2026.04.01 17:55 I attest to the accuracy and integrity of this document