1. ' GULZAR AHMED, J.---This petition has been filed against the order, dated 1-10-2008 passed by the learned Ist Additional District and Sessions Judge, Karachi (Central) by which the petitioner's Civil Revision Application No,46 of 2007 was dismissed.
2. ' The facts in brief are that respondent No,3 had filed a suit for recovery of Rs,4,80,000 by sale of immovable property against the petitioners in the Court of learned VIth Senior Civil Judge, Karachi Central on the basis that the respondent No,3 has advanced a loan of Rs,4,80,000 to Abdul Yaseen Khan, the predecessor of the petitioners and had signed a promissory note and receipt. The said predecessor of the petitioner also deposited with the respondent No,3 title documents of immovable property being Flat. No,B-6, IInd Floor, Ambreen Shopping Centre on Plot No,SE-7, Sub Plot No,B-3, Block-G, North Nazimabad, Karachi as security for repayment of the said amount. The predecessor of the petitioners died. As the amount was not paid, the above suit was filed against the petitioners as the legal representatives of the deceased. The petitioners filed a joint written statement in the suit. After framing the issues and recording the evidence of the parties, the learned trial Court decreed the suit as prayed vide judgment, dated 27-3-2007. No appeal seems to have been filed by the petitioners against the judgment and decree passed by the learned trial Court but instead the petitioners have filed an application under section 151 read with section 12(2), C.P.C. Before the trial Court. This application of the petitioners was contested by the respondent No,3 who filed his counter-affidavit. After hearing the learned counsel for the parties, the trial Court passed an order, dated 5-7-2007 whereby the petitioner's said application was dismissed against which the Revision Application was filed in which the impugned order has been passed.
3. Learned counsel for the petitioners in the first place, contended that before filing of suit, the respondent No.3 ought to have obtained Letter of Administration and has referred to section 278 of the Succession Act. What we understand from this argument of the learned counsel is that the respondent No,3 instead of filing of the suit could have obtained a Letter of Administration in respect of the property, the title documents of which were handed over by the predecessor of the petitioners to the respondent No,3 as security for the debt owned by the deceased. Section 278 of the said Act provides for a procedure for filing of petition are mentioned in section 218 of the said Act and they are those who, according to rules of distribution of the estate applicable in the case of such deceased to be entitled to all or any part of deceased's estate; when no person applies, it may be granted to the creditors of the deceased. This perhaps may have been possible where the petitioners had admitted the liability. In the present case the respondent No,3 had filed a suit for recovery of Rs,4,80,000 and in the prayer has sought an alternative relief that in case the amount claimed is not paid, the same be recovered by sale of the property, title documents of which were delivered by the deceased to the respondent No,3. As it appears the liability was denied by the petitioners, issues were framed, evidence of the parties were recorded and thereafter the trial Court passed its judgment and decree. Therefore, in our view, this was not a fit case where the creditor, the respondent No.3 could have directly approached the Court for grant of Letter of Administration of the property of the deceased.
4. The next submission of the learned counsel was that two of the petitioners Nos.4 and 5 namely Mohibullah and Huwaida were minors at the time of filing of the suit and they have been impleaded as defendants Nos. 4 and 6 in the suit without their next friend and there has been no appointment of their guardian ad-litem, therefore, the suit was not maintainable. Though, in the plaint there is no mention that petitioners Nos. 4 and 6 were minors but in the joint written statement filed by the petitioners, an objection was taken that these two petitioners are minors.
5. The title page of the judgment and decree passed by the trial Court shows that both petitioners Nos. 4 and 6 have been sued through next friend/mother the petitioner No,
1. Similarly the title page of the application under sections 151 and 12(2), C.P.C. Filed by the petitioners and the title page of the order, dated 5-7-2007 passed by the trial Court, the petitioners Nos. 4 and 6 are shown to be represented through next friend/mother, the petitioner No. 1. In view of such record of the trial Court, we are of the considered view that at some stage of the proceedings before the trial Court, the petitioner No,1 the mother of minor petitioners Nos. 4 and 6 was appointed as guardian ad litem and an amended title of the plaint was also filed as is apparent from the title page of the application filed by the petitioners before the trial Court i,e, annexure A/8 to the petitioner. Thus this submission of the petitioner's counsel does not appear to be factually correct as the record shows that petitioners Nos. 4 and 6 the minors were duly represented through their mother as next friend in the proceedings before the trial Court. In any case the petitioner No.1 is the mother while the remaining petitioners Nos. 2 to 6 are bothers and sisters and apparently they did not have any adverse interest to that of minors petitioners Nos. 4 and 6 and therefore, no apparent prejudice seems to have been caused to them even if an order for appointment of guardian ad litem was not obtained from the trial Court. In this respect reference is made to the case of Tanveer Mahboob v. Haroon and others (2003 SCM R 480) wherein the Hon'ble Supreme Court has observed as follows:-- "In a case in which a minor defendant in the suit was represented by his father or brother or sister as co-defendant without any conflict of interest and such co-defendant sincerely and effectly defended the rights and interest of the minor in the property, it would be deemed that such rights were sufficiently safeguarded and mere fact that minor was not sued through guardian ad litem would not make the decree invalid and same would be binding on the minor."
6. ' The third and the last contention of the learned counsel for the petitioners was that petitioners counsel was not given opportunity to make final argument in the suit by the trial Court. The diary sheet of the trial Court proceedings has not been filed for the Court to appreciate this point.
7. However, from the impugned order it appears that on 20-3-2007 the case was fixed for final arguments when the counsel for the respondent No,3 filed note of written arguments where after the case was adjourned to 24-3-2004 on which date no one appeared from the side of the petitioners. The case was posted to 27-3-2007 for announcement of judgment on which date the petitioners side remained absent upon which the Court pronounced its judgment. The contention of the learned counsel for the petitioners was that petitioners counsel's clerk namely Naqi Hassan had attended the Court on 20-3-2007 for receiving the copy of written arguments when the Court Reader Riaz gave him 31-3-2007 as next date owing to which the petitioners' counsel had no opportunity to argue the matter before the trial Court as on 27-3-2007 the judgment was announced and the suit was decreed.
8. ' The application under section 151 read with section 12(2), C.P.C. Appears to have been filed from the side of the petitioners with three affidavits as is mentioned in the first two lines of the application itself. The petitioners with this petition have filed only two affidavits one of Mr. G.M.
9. Saleem Advocate who was the petitioners' counsel in the trial Court and the other of his Court clerk namely Mr. Naqi Hassan. The third affidavit, as it appears from the counter-affidavit, was that of the petitioner No.2 himself. Why the third affidavit is not filed, the same is not explained in the petition nor the petitioners' counsel made any submission in this regard. This very aspect of the case will raise an adverse inference against the petitioners that had the third affidavit of petitioner No,2 been filed, the same would not have supported the petitioners' case. Without much dealing on this aspect, the two affidavit one of the petitioners' counsel and the other of his Clerk squarely blame Reader Riaz for giving of the next date as 31-3-2007. The Court Clerk of the petitioners counsel has also stated in his affidavit that he is prepared to take special oath on Holy Qur'an. The petitioners did not endeavour to have the evidence of Reader Riaz recorded in the matter whose evidence could have been useful in resolving the controversy regarding giving of date and all the allegations made against him nor the Court Clerk of the petitioners' counsel took special oath on Holy Qur'an before the trial Court. The respondent No,3 in his counter-affidavit has made a categorical statement that on 20-3-2007 the matter was placed before the link Judge who signed the presentation of the arguments and in his presence and in presence of the petitioners Advocate Court Clerk the matter was adjourned to 24-3-2007. No rejoinder to the counter-affidavit has been filed by the petitioners. There is, therefore, only a word against word without any cogent evidence to support it. The cogent evidence which could have been produced/filed from the petitioners' side, would be the diaries of 20-3-2007 of petitioners' counsel Court Clerk and that of petitioners' counsel himself in which invariably next dates are written and also the file cover of the case on which the counsel or their Clerk note down the dates. As a further evidence the certified copy of the cause list of the trial Court of 20-3-2007 could have also been produced. None of these cogent evidences to support the submission of the petitioners' counsel were produced/filed in the trial Court. The affidavit of the petitioner No,2 has been suppressed from this Court. Thus, there appears to be no sufficient material to safely conclude that on 20-3-2007 the next date was given in the case by the Court Reader as 31-3-2007.
10. ' After hearing the arguments of the learned counsel for the petitioners through a short order passed on 10-4-2009, the petition was dismissed in limine.
11. ' The above are the reasons of the said short order.