MUHAMMAD AMEER BHATTI, J. --- This review petition is for recalling, the order dated 16.11.2010 passed by our learned brother lqbal Hameed-ur-Rehman, J. Whereby the applicants were directed to get anyone to be appointed as guardian of the minor from the Court of competent jurisdiction before entering into the compromise on behalf of the minor.
2. The facts necessary for the disposal of this petition are that during the pendency of Writ Petition No. 18400/10, the parties entered into a compromise after preparing the compromise deed, same was submitted in the writ proceedings alongwith this application. C.M. No. 4/2010 under Order 32, rule 3, CPC was filed which come up for hearing before our learned brother lqbal Hameed- urRehman, J. Who vide order dated 16.11.2010 dismissed the same with the view to first get the 'guardianship certificate from the Court of jurisdiction.
3. Learned counsel for the petitioner contends that the guardian ad item appointed (by the Court where the matter is pending) can also play the same role as the guardian appointed by the Guardian Judge, under Order 32, Rule 3, CPC. Hence the application was competent and has been dismissed without considering this aspect of the case.
4. We have gone through the relevant provision of law as provided in the CPC under Order 32, Rule 3, CPC. The power to appoint the guardian of minor by the Court vests in it where the matter is pending and it has the same 'validity as appointed by the Guardian Judge. However, the difference is that guardian appointed under the Order 32, Rule 3, CPC would operate exclusively for that matter which is pending before the Court and not other than that.
5. It is added that the guardian who has been appointed by the Guardian Judge will look after his/her (minor's) every aspect of life but the case of guardian ad item stands on different footing inasmuch as guardian would only exercise his guardianship to the extent of the matter forming the subject-matter of that particular Court after the conclusion of the matter the power of the guardian will come to an end. Now question arises whether the guardian ad item can enter into a compromise on behalf of the minor in that case or not?
6. For that matter, the CPC provides another provision Order 32, Rule 7 which empowers the guardian to enter into compromise on behalf of the minor but it also imposes the condition of obtaining the permission from the Court where the matter is pending. In short, the guardian will perform his duty according to the advice/direction of the Court by which he has been appointed under the provision of CPC (Order 32, Rule 3) i.e. Under the umbrella of that specific Court.
7. So there is no difference between these two provisions except that the guardian once appointed by the Guardian Judge remains under the supervision of the Guardian Judge and is answerable to the Guardian Judge in discharging his legal obligations whereas the guardian ad item appointed under Order 32, Rule 3, CPC shall remain under the control of the Court where the matter is pending. Nevertheless, the guardianship under any capacity entails uniform duties i.e. To safeguard the interest of minor.
8. Order under review has been passed under the impression that only guardian who is holding the guardian certificate can enter into the compromise and look after the interest of the minor as such guardian works under the control of the Guardian Judge and Guardian Court is to be appointed before selling the property of the minor and for that matter sale proceeds from the property of minor be deposited with the Guardian Judge.
9. This Bench is of considered view that the same powers are vested in the Court where the matter is pending and that Court can impose any condition by permitting the guardian ad item about the share of the minor but the Court cannot refuse to appoint any person from the relatives of the minor on the ground that first he should get the certificate of guardianship from the Guardian Court and only then any application for compromise can be entertained, which is against spirit of the provision of Order 32, Rule 3 - even the Court can appoint its reader as guardian of the suit property belonging to minor and can make an arrangement for its management according at its discretion.
10. In this view of the matter, if the order under review is allowed to prevail, it will render the provision of CPC under Oder 32, Rules 3 and 7 as redundant. It is the duty of the Court to exercise the power vested in it under the law and decide the matter keeping in view the provisions of law.
Since the order has been passed in violation of the mandatory provision of law, the Order under review is unlawful and, could not be allowed to prevail being unsustainable in the eyes of law.
11. Consequently, the application in hand is allowed and the order dated 16.11.2010 passed by our learned brother lqbal Hameed-ur-Rehman, J. Is hereby recalled and application for appointment of guardian ad item will be deemed to be pending and it shall be decided by following the above- noted guidelines in the interest of justice.
C.M.No. 1-2011 12. Through this C.M. The condonation for filing the review application within time is sought. It is settled law that when the order, on the face of it is illegal and unsustainable in the eye of law, the question of limitation becomes immaterial and the contention regarding filing of appeal/review with a delay shall not be considered for setting it naught.
13. In this view of the matter the application is allowed and delay in filing this review is condoned in the interest of substantial justice. Review .