' Respondent Muhammad Shah and others filed a suit on 14-5-1976 to pre-empt the sale of agricultural land measuring 97 kanals and 9 marlas in favour of Farhat Abbas petitioner/defendant/vendee. The sale was effected by registered sale deed on 15-5-1975.
2. It appears that on 7-7-1976 applications were moved on behalf of the plaintiffs/respondents under Order VI, rule 17 and Order XXXII, rule 3, C. P. C., praying for permission to amend the plaint by the appointment of a guardian of the petitioner/defendant. Ten days later on 17b7-1976 an application was moved by the petitioner/defendant praying for the dismissal of the suit on the ground that as he was a minor and had not been sued through a guardian ad litem, he could not be considered to be a party to the suit and that as a consequence even if amendment of the plaint was allowed, the suit against him would be time barred. By its order dated 24-2-1977 the trial Court accepted the plaintiff's application, allowed the respondent/plaintiff to amend the plaint so as to sue the petitioner/defendant through a guardian ad litem and appointed Muhammad Yousaf the father of the petitioner as guardian ad item. The present revision petition on behalf of the defendant/vendee against the afore referred order of 24-2-1977 was admitted to hearing on 5-4- 1977 and further proceedings were ordered to be stayed.
3. Learned counsel for the petitioner/defendant has argued that in law a suit against a minor cannot be deemed duly instituted until such time as he is sued though a guardian ad /item, and in this behalf has relied on the provisions of rules 3 and 5 of Order XXXII of the Code of Civil Procedure (hereafter referred as C. P. C.). He relied on a judgment of this Court in All Muhammad v.
Muhammad Hussain (I). On the other hand learned counsel for the respondents/plaintiffs argued firstly, that the suit against the minor defendant was validly instituted in time and. Secondly that a reference to the Sale Deed shows that the vendee had not been described therein as a minor and even in the proceedings before the Registrar of Documents, Muhammad Yousaf, the father of the vendee is shown to have paid the amount on behalf of the vendee who was again not described as a minor. Learned counsel urged that this was done deliberately so as to mislead the respondents. In these circumstances, learned counsel has argued that the {{FOOT NOTE}}
(1) 1980 CLC 2214 {{FOOT NOTE}} ' omission to make an application under Order XXXII, rule 3 for the appointment of guardian ad litem was on account of the fact that the plaintiff was unaware of the minority of the vendee/defendant.
4. Taking up the second contention of learned counsel for the respondent first, in similar circumstances, the Supreme Court observed that Courts are to come to the rescue of the entrapped suitors. See M. Ismail v. M. Sarwar (1). By now it is well settled that technicalities of procedure should not be allowed to defeat justice and procedural law is to facilitate and further its ends. See M. Ismail v. M. Sarwar, Thal Engineering Industries v. Bank of Bahawalpur (2), Manager Jammu & Kashmir State Property v. Khuda Yar (3), Tom. Gul v. Mst. Mumtaz Begum (4), Mehdi Khan v. Faqir Muhammad (5). It is evident that in the circumstances of this case the respondents/plaintiffs were misled into assuming that the vendee was a major and had no cause to believe otherwise. Their omission to describe dependent as a minor as such is satisfactorily explained. However, despite this it remains to examine whether it would be permissible to allow the appointment of a guardian ad litem on the basis of an application under Order XXXII, rule 3 of the C. P. C. Submitted after the expiry of the prescribed period of limitation.
5. As already stated, learned counsel for the petitioner relied on the judgment of a learned Single Judge of this Court in All Muhammad's case. In that case two of the minor defendants/vendees in the suit for pre-emption were sued as majors. Later on application for appointment of their guardian ad litem was made, well after the expiry of the prescribed period of limitation. The application was rejected by the trial Court on the ground that as it had been made after expiry of period of limitation, valuable rights had accrued to the minor. In upholding the order of the trial Court, the learned Judge observed that under sub-rule (5) of rule 10 of Order I of the C. P. C., a suit could not be instituted against a minor except through a guardian ad litem, and that such a suit would be deemed to be duly instituted on the day the minor is sued through a guardian. In this context, reliance was also placed on section 22 of the Limitation Act, 1908. This would obviously be so if the minor had not been impleaded as party to the suit. But where the minor has been impleaded as a defendant, the provisions of Order I, rule 10(5) are not attracted. This aspect of the Matter was not brought to the notice of learned Judge. The learned Judge also distinguished the judgment in the case of Yonuas Bhuyian v. Jiban Chandra (6), on the ground that it concerned an appeal where delay could be condoned and it was further implied that the case did not arise out of a suit for pre-emption. However, an examination of Younas Bhuyian's case shows that it arose out of a suit for pre-emption in which a guardian ad 'item has not been appointed of one of the defendants who was a minor. It was not a case in which it was sought to get appointed a guardian ad /item at the appellate stage. It was held in Younas Bhuyian's case that when it comes to the notice of a Court that a defendant is in fact a minor, an order for the appointment, of his guardian becomes necessary under rule 3, Order XXXIII, C. P. C., and that in such circumstances, the minor cannot be treated as not being before the Court. It will thus be seen that the basis on which Younas Bhuyian's case was distinguished in Ali Muhammad's case if I may say so with respect, is not correct. {{FOOT NOTE}}
(1) 1980 SCM R 254 (2) 1979 SCIVIR 32
(3) PLD 1975 SC 578 (4) PLD 1972 SC 9
(5) PLD 1980 Lab. 110 (6) PLD 1963 Dacca 323 {{FOOT NOTE}}
6. An examination of the provisions of Order XXXII also shows that the argument of learned counsel for the petitioner cannot be sustained. Rules I and 2 of Order XXXII provide that where the plaintiff is a minor, a suit on his behalf can only be instituted through a next friend, who constitutes himself as such and for whose appointment no prior order of the Court is necessary. However, in so far as a minor defendant is concerned, a reference to rule 3 of Order XXXII will show that its provisions are conspicuously different from those of rules 1 and 2. A guardian ad lite cannot be selected, appointed, or constituted by the plaintiff. For this, purpose the plaintiff has to make an application to the Court and it I obvious that such an application can only be made after the suit has been instituted. It follows therefore that a suit against a minor defendant is to be filed against him as such, without impleading him through a guardian ad litem, and the fact of the defendant being a minor is to be brought to the notice of the Court by means of an application under rule 3 of the Order XXXII, C. P. C. Thereafter it is for the Court to appoint a guardian ad litem in accordance with the procedure provided by the rules. Obviously therefore, a suit against a minor defendant is validly instituted by directly' impleading the minor as a defendant. Appointment of a guardian ad liter is the prerogative of the Court.
7. Reference in this context may be made to a recent judgment of the Supreme Court in the case of M. Ismail v. M. Sarwar affirming the judgment of this Court in M. Ismail v. M. Sarwar (1), where in circumstances which were identical to those out of which these proceedings emanate, it was observed that, "now if a person is already a defendant but his description as minor is not given, and is sought to be corrected later, he does not become, a new party. There can be no doubt that a minor is no bound by any proceedings taken against him where he is not properly represented and a guardian is not appointed of such a minor, but the question for decision in this ease is not whether the minor was or not properly represented as it has always been held that he was not, but the question is whether it should be held that there was no suit filed against him on 26-5-1975 because no guardian had been appointed of the minor. In every suit where the defendant is a minor the right of appointing hi, guardian is not given to the plaintiff but to the Court. The plaintiff can only suggest who should be appointed his guardian and it is for the Court being satisfied of the fact of the defendant's minority, to appoint a proper E person to be guardian for the suit for such minor. (See Order XXXII, rule 3, C. P. C.). It is, therefore, obvious that the question of appointment of a guardian must come after the institution of the suit, but when guardian is appointed, the suit is not deemed to have been instituted against the minor on the date of such appointment, but on the date when the sin was filed. If, before such appointment is or can be made, the minor attain majority, the suit would not be deemed to be filed against him on the date when he attained majority, but on the original date when it was filed Court. This shows that party to suit throughout would remain the minor and not the guardian ad litem". It was also observed that "a guardian ad lite himself never is and nor does he ever become a party to the suit merely because he is so appointed. The party remains the minor defendant and all that the law requires is that before proceeding further the Court is to appoint his guardian ad litem under Order XXXII, rule 3, C. P. C. The appointment of such a guardian is neither a substitution nor an addition," {{FOOT NOTE}}
(1) PLD 1978 Lab. 1461 {{FOOT NOTE}} ' of a new party at all, and as such the provisions of section 22, limitation Act are not attracted to such a situation and at the most it may be a case of simple misdescription of a defendant and is certainly not of his omission. It was argued by the learned counsel that by describing the minor, defendant as a major, the defendants had acquired a vested right of which they could not have been deprived by allowing the plaintiff to amend the plaint or get his guardian ad litem appointed from the Court. The short answer is that the defendants in fact had acquired no right under the Limitation Act, because as explained earlier the institution of the suit was quite competent and saved limitation and it was only further progress of the suit which depended upon the appointment of a guardian ad litem by the Court and that too at a stage when the Court was satisfied that the defendant was a minor and deserved to be represented by a suit guardian. This as is obvious, is a step subsequent to the institution of a suit, and the institution was not dependent upon first getting such a guardian appointed in advance for suing a minor, so as to make the institution incompetent in the absence of the fulfilment of that condition precedent or without procuring of an order of the Court on those lines. The upshot of the above discussion is that the amendment allowed and orders passed by the Courts below do not suffer from any infirmity and nor are they in violation of any principle of law relevant to the subject in hand".
' Reference in this behalf can also be invited to the judgments in Ghulam Hussain v, Ghaus Bakhsh (1), Yunus Bhuyian v. Jiban Chandra (2), Ralla Singh v. Bashna (3), Mst. Durga Devi v. Gur Narain (4), Talib All v. Piarey Lal (5), Khern Karan v. Har Dayal (6), Abdul Aziz v. Sheikh Amin (7). A minor therefore is to be considered a party to a suit from the date of the institution of the suit and not from the date when the arrangement for proper representation of the minor is made. Accordingly, on the facts of this case, the impugned order is unexceptionable.
' There is no force in this petition which is dismissed. In the circumstances of this case, there will be no order as to costs. {{FOOT NOTE}}
(1) 1968 SCMR 991 (2) PLD 1963 Dacca 323
(3) AIR 1926 Lah. 186 (4) AIR 1924 Lah. 157
(5) AIR 1930 All. 644 (6) I L R 4 All. 37
(7) AIR 1941 Nag. 130 {{FOOT NOTE}}