GHULAM RABBANI, J. --- This Civil Appeal with leave of this Court is directed against the judgment dated 11.9.2000 passed by learned single Judge of Lahore High Court, lahore, whereby Civil Revision application made by appellant was dismissed.
2. Relevant facts are that Shamas-ud-Din respondent No. 1 instituted against appellant a suit No. 770 of 1976 for declaration to the effect that he was owner in possession of the suit land admeasuring 196 kanals, 14 marlas situated in Mauza Lakh Kalan, District Bhakkar. At that time, appellant was a minor and he was sued through his maternal uncle Ahmad Jan respondent No. 2 herein, who, ,representing the appellant as his guardian ad-item, filed on 12.7.1976 a conceding written statement. .Accordingly, Trial Court passed decree in favour of respondent on the same day. Subsequently appellant challenged the said decree by way of a suit No. 1103 of 1976 on the ground of fraud and his suit was decreed vide judgment dated 10.11.1979 passed by Civil Judge, 2nd Class, Bhakkar. Respondent No. 1 preferred thereagainst an appeal which was accepted and the suit of appellant was dismissed vide judgment/decree dated 10.2.1985 passed by District Judge, Bhakkar. Feeling aggrieved, appellant made a Revision Application; that, too, met the same fate vide judgment, impugned herein.
3. Leave was granted vide order dated 24.5.2005, in. Essence, to consider whether respondent No. 2 was appointed as guardian ad-item in suit filed by respondent No. 1; if so, whether his appointment could be considered valid in absence, on record, of a notice to the father of appellant or to any other of his guardians. To sum up, (a) whether provision of Order XXXII, Rule 3, C.P.C. Was adhered to in making the appointment to render a decree dated 12.7.1976 valid or otherwise on the conceding statement filed by respondent No. 2, (b) whether the interest of minor was properly taken care of, in true spirit of provision of Order XII, Rule 6 or Order XV, Rule 1 of C.P.C. When the conceding statement filed by alleged guardian is not considered to fall within the provision of an agreement or compromise as envisaged by Section 147 or by Order XXXII, Rule 7, C.P.C. Also, what would be the effect of testimony of respondent No. 2 on the decree dated 12.7.1976 when he stated that he was never appointed as a guardian of appellant and that he had never filed any written statement in the suit instituted by respondent.
4. , Mr. Tariq Javed, ASC, learned counsel for appellant contended that respondent No. 2 was not appointed as guardian ad-item and in that referred to his testimony. Even otherwise, he added that appointment, of respondent No. 2 as a guardian 'ad item of appellant without notice to father of appellant, who was alive at material time. Was violative of provision of Order XXXII, Rule 3. C.P.C.: and that the respondent No. 2 as a guardian ad-item could not file conceding written statement on behalf of minor appellant, unless express leave was obtained within terms of Order XXXII, Rule 7, C.P.C.; and that in absence of such permission the decree dated 12.7.1976 was in flagrant violation of relevant provision of law. He submitted that the Trial Court had rightly set aside that decree in the suit of appellant while the District Judge, Bhakkar and learned single Judge of Lahore High Court, under some misconception, could not take note of basic legal. requirement and erred in setting aside the decree of Trial Court, therefore, their decisions were liable to be undone.
5. On the other hand, Malik Abdul Sattar Chughtai, ASC, learned counsel for respondent No. I disputed the above oral submissions and argued that respondent No. 2 happened to be real maternal uncle: of appellant; that previously, too. He had, as a next friend, represented the appellant in another suit for pre-emption regarding same land under dispute; and that the appellant, having become owner of, the land in question on a decree passed in that suit, sold out the same to respondent No. 1. Mr. Chughtai, next, argued that the decree dated 12.7.1976 passed in, previous suit of respondent No. 1 was in proper . Exercise of jurisdiction within terms of. Order XII, Rule 6, C.P.C., therefore, the question of obtaining permission under Order XXXII, Rule 7; C.P.C. Could not arise since it was not contemplated to enter into agreement or compromise on behalf of a minor. Learned counsel supported the judgments of learned single Judge of Lahore High Court and that of the Appellate Court.
6. We have given due attention to the oral submissions of both the learned counsel and with their assistance we have gone through the material available on record. In the first place, it may be noted that respondent No. 2 admitted in his evidence that, as a next friend, he represented the appellant in suit for pre-emption which was decreed in his favour. Appellant's witness Juma Khan (PW1) who was defendant/vendee in the above-referred suit for pre-emption also made identical statement. We have seen the order dated 12.7.1976 available at page 43 of the paper book which reflects that in presence of counsel for parties, respondent No. 2 was appointed as guardian ad iitern of appellant who was minor at that time: therefore. Such appointment in ordinary circumstances would not appear illogical to raise eye-brows. The contention of learned counsel for appellant that in previous suit respondent No. 2 was not appointed as guardian ad item of appellant, therefore, falls flat.
7. Coming to the question that guardian ad-item could not be appointed by the Court unless a notice to the father of minor appellant was issued; it may be stated that we have gone through the plaint in 'the suit of appellant/plaintiff and find that he had filed a suit simply stating in general terms that respondent No. 2 was not empowered in fact or legally and the decree was collusively obtained by respondent No. 2 in favour of other respondent without information or advice, by playing fraud. No particulars were stated as to how the fraud was played upon. In this behalf, it will be useful to mention that Order VI, Rule 4, C.P.C. Envisages that in all cases in which the party pleading relies on mis-representation, fraud, breach of trust, and in all other cases in which particulars may be necessary beyond such as are exemplified in the relevant forms aforesaid particulars (with date and items if necessary), shall be stated in the pleading. No such particulars were stated in the plaint to say that no notice was issued to the father of the plaintiff who was alive and in violation of law respondent No. 2 was appointed as his guardian ad item by under-hand methods, and the interest of appellant in the suit land was, as such, impaired. Interestingly, in the memo. Of instant appeal appellant has, too, not taken the ground that the appointment of respondent No. 2, as his guardian ad-item was illegal. In paragraph (i) of grounds. Appellak has simply taken a plea that, "the guardian of minor was not appointed by the Court". As such the impugned judgment and decree are violative of law" which we have already considered in the foregoing para.-Thus having not stated his case in his pleading. As required. And having not raised the factual ground in the memo. Of appeal that his farther was alive calling for a notice to be given to him, in our view. The appellant cannot, at this stage,, take a new plea totally alien to his case.
8. Besides above, it may be stated that as a defendant respondent No. 2 filed his written statement in the suit of appellant, in which, supperting his case he did not say a single word that the father and uncle of appellant were alive. However, for the first time, in his deposition he stated so. His oral evidence is, thus, beyond his pleading on one hand and on the other it gives an impression that, as an after-thought, he made such disclosure only as a tool to enable the appellant to concoct a false plea that the -appointment of guardian ad item was in disregard of the relevant rules. Be that as it may, this respondent does not appear to be a truthful witness, amongst others, on the ground that he denied in his deposition his actual relationship with appellant. He stated that appellant was not his real nephew but a son of his maternal cousin. This statement of his was denied by appellant himself in his deposition wherein he stated in clear terms that respondent No. 2. Happened to be his real maternal uncle. It also looks strange that the father of appellant never appeared himself before the Court to corroborate the statement of respondent No. 2. Also, no other solid evidence was produced to establish the point. We are clearly of the view that the arguments of learned counsel for appellant on this point are devoid of any force.
9. After his appointment as guardian ad item respondent No. 2 filed written statement conceding the averments of respondent No. 1 leading to the declaratory decree dated 12.7.1976 passed by learned Trial Court in his favour. Admittedly, the suit was decreed by Trial Court in favour of respondent No. 1, on the basis of the conceding written statement filed by respondent No. 2 by invocation of Order XII, Rule 6, of C.P.C. a provision distinct to one provided under Order XXXII, Rule 7, C.P.C. Learned Single Judge of Lahore High Court has made this point clear by observing, rightly so, that "It is true that Order XXXII, Rule 7, requires that no compromise on behalf of a minor can be effected by his guardian except with the express permission C.L.R. of the Court. However, this provision has no practicability (applicability) in the present case inasmuch as the suit had not been decreed on the basis of any compromise but in view of the conceding written statement filed by the guardian ad item under Order XII, Rule 6 of the Code of Civil Procedure". We also see no reason to disagree with this finding.
10. Provision of Order XII, Rule 6, C.P.C. Is discretionary with the Court to grant decree on admissions.
In the instant case since the interest of minor was involved, in that situation, it was all the more necessary for the Court to have been cautious to grant decree on conceding written statement filed by his guardian ad item none else than his real maternal uncle so admitted by appellant in his evidence. Appellate Court seems to have taken note of this situation very carefully and has given satisfactory reasons before setting aside the decree of Trial Court. It is observed that:- "In the plaint the respondent had alleged that the impugned decree in favour of Shamas Din was the result of fraud and collusion between Shamas Din and his maternal uncle who was arrayed as defendant No. 2. However, no particulars of the fraud were given. It is true that fraud is not capable of being proved by a direct evidence but circumstances must be brought in to prove the fraud.
However, the Trial Court without looking into such circumstances, had out-rightly declared the impugned judgment against Bashir' Ahmad as void. Defendant No. 2 was non-else than the real maternal uncle of Bashir Ahmad. He did not bear any friendship or relationship with Shamas Din.
No evidence was brought on the record to show that with the passage of time he had become inimical towards Bashir Ahmad his nephew When he instituted a suit for pre-emption in favour of Bashir Ahmad as his next friend, he was stated to be acting legally and in the interest of Bashir Ahmad yet when he filed a written statement admitting the claim of Shams Din, he was acting in collusion. It was impossible to hold that he was acting in collusion with Shamas Din or was playing fraud on Bashir Ahmad when he bore no relationship with Shamas Din.
The Trial Court had altogether lost sight of this aspect of the case".
Also, observed that:- "No evidence on the record was brought showing animosity of the Ahmad Jan (respondent No. 2) with .Bashir Ahmad".
11. There are two concurrent findings of learned single Judge of Lahore High Court and that of the Appellate Court, which, seen in the light of above discussion, suffer from no legal defect or infirmity and warrant no interference.
12. In the circumstances, we do not find any merit in this appeal, which is dismissed with no order as to costs.