1. ' Facts of this civil revision are that respondents Nos.1 to 3 had filed a suit against Sobha, his four sons and one Karim Bakhsh for declaration and in the alternate for specific performance on the basis of an "Adhlapi" agreement allegedly executed by Sobha in their favour.
2. ' The suit was contested by the defendants. After framing issues and recording evidence, the learned trial Court had dismissed the same on 9-4-1980.
3. ' Plaintiffs' appeal against that decree was however accepted by Additional District Judge on 8-2- 1981. Resultantly the suit was decreed on the basis of an "Adhlapi", agreement.
4. ' About 21 years thereafter defendants Nos.4 and 6 namely Dilawar Khan and Nazar Hussain respectively, sons of Sobha filed an application under section 12(2), C.P.C. Before the Additional District Judge challenging the validity of the aforesaid decree dated 8-2-1981 on the plea of fraud and misrepresentation on the following grounds:-- ' They were minors; the learned trial Court had appointed Sobha Khan as their guardian ad litem without recording his statement and without obtaining his consent if he was willing to be appointed as such; ' Sobha Khan was unaware that he was appointed as their guardian hence for the said reason he had not engaged any counsel to represent them and had appointed a counsel only for himself.
5. Written statement was also submitted by Sobha Khan in his personal capacity and not as their guardian ad litem, thumb-impressions of the minors were separately obtained on that written statement; ' the aforesaid appointment of Sobha Khan was, therefore, void and since they (minors) were unrepresented during the trial and the appeal, both the decrees passed by the learned trial Court as well as the learned Appellate Court are void; and ' Sobha Khan had not taken any interest in defending the suit and the appeal.
6. ' The aforesaid application under section 12(2), C.P.C. Was opposed by respondents Nos.1 to 3 (plaintiffs decree-holders) and was dismissed by Additional District Judge, Rajanpur on 28-9-2002.
7. ' The aforesaid order of the Additional District Judge is assailed by the petitioners in this civil revision on the same grounds which are mentioned in their application under section 12(2), C.P.C.
8. And are already stated in preceding paragraph No,2 with the addition that mandatory provisions of Order XXXII, rule 4(3) of C.P.C. Was not complied with by the learned trial Court; that Malik Manzoor Ahmad, Advocate who had made statement before the learned trial Court on behalf of Sobha Khan that the said defendant had no objection to be appointed as guardian ad litem of the minors, was neither appointed as a counsel by Sobha Khan nor was authorized to make such statement; that interest of Sobha Khan was adverse to that of the minors and that the controversy was of such a nature that it could not have been resolved without framing issues and recording evidence.
9. ' Petitioners' counsel has been heard. Civil revision and its annexures perused.
10. ' According to the order recorded by the learned trial Court on 20-5-1976, service on the aforesaid minor sons of Sobha Khan defendant No,1 was effected through their father who was proposed to be appointed as their guardian ad litem. On the said date Malik Manzoor Ahmad, Advocate who was present on behalf of Sobha Khan (defendant No,1) made statement before the learned trial Court that he had no objection if Sobha Khan defendant No,1 be appointed as guardian ad litem of his minor sons viz. Defendants Nos.4 to 6. Resultantly, he was appointed as such by the learned trial Court.
11. ' A joint written statement was submitted in the suit by all the respondents (including minors) through Malik Manzoor Ahmad, Advocate. It was not alleged by the petitioners in their application under section 12(2), C.P.C. That Malik Manzoor Ahmad, Advocate was not appointed as counsel by Sobha Khan and he was, therefore, not authorized to make statement on his behalf. In view of the statement made by the counsel, the learned trial Court was not required to separately record the statement of Sobha. Khan. Sobha Khan was duly appointed as guardian ad litem of the minors. In the decree sheet also prepared by the learned trial Court all the defendants are shown to be represented by Malik Manzoor Ahmad, Advocate.
12. It is, therefore, evident that the attendance of Malik Manzoor Ahmad, Advocate was marked on behalf of Sobha Khan not only in the inception but also on the day when the proceedings of the civil suit had culminated as is reflected by the decree sheet.
13. ' Sobha Khan was admittedly father of the minors and no other person was more suitable to safeguard the rights of the minors. According to record interest of the said guardian at litem was not adverse to that of his minor sons neither any such allegation was made in the application under section 12(2), C.P.C.
14. ' A perusal of annexures also shows that not only the suit but also the appeal was contested and that the minors were fully represented by their guardian ad litem through the same Advocate who was representing their guardian. The joint written statement was thumb-marked by the guardian ad litem and other major defendants. If thumb-impressions of minors were also obtained on that joint written statement it was merely a redundant exercise wherefrom it cannot be inferred that they were not represented by their guardian ad litem.
15. ' From the foregoing discussion it is clear that defendant No,1 Sobha Khan was duly appointed as guardian of the petitioners by order of the Court. Nothing was produced to show that Sobha Khan was not :m are that he was appointed as guardian ad litem and that he had not taken interest in defending the suit and the appeal. Both the suits as well as the appeal were contested and were decided on merits.
16. ' Contention that mandatory provision of Order XXXII, rule 4(3), C.P.C. Was not complied with by the learned trial Court is without force because counsel for defendant No,1 had given consent on behalf of his said client on the basis of which defendant No,1 was appointed as guardian ad litem who during the entire trial, appeal and even during his lifetime had never objected to the aforesaid appointment.
17. ' Argument that Malik Manzoor Ahmad, Advocate was neither appointed as E counsel by Sobha Khan nor was authorized to make statement on his behalf is repelled being an afterthought as the said allegation was not made in the application under section 12(2), C.P.C. And in addition thereto it is also belied by the record as mentioned hereinbefore.
18. ' Joint written statement as well as the judgment of the Civil Court and the Appellate Court do not reflect that interest of Sobha Khan was adverse to his minor sons (petitioners).
19. ' Last submission of the petitioners' counsel that framing of issues and recording of evidence was necessary for resolving the controversy is also without any substance.
20. ' The impugned order is based on plausible reasoning and does not suffer from any jurisdictional infirmity, hence F interference in revisional jurisdiction is not warranted. Civil in limine.