' YAR MUHAMMAD, J.---It will be needless to recapitulate the whole facts leading to this litigation because both the learned courts below. Almost have elaboratively discussed' the facts in their detailed judgments which have been impugned through this petition. Suffice is to say that parties to the litigation are the descendants of one Aafiyat Khan who has died leaving behind six sons as L.Rs, The instant suit has been filed against the legal heirs of Lal Baig "a son of said Aafiyat Khan" and his widow Mst. Manija and the present suit has been filed nominating Mst. Manija as guardian to the minor defendants for being their mother. The dispute between the parties is over a shop situated at Gari Bagh, Gilgit about which the petitioner/defendants are of the contention that the suit shop is the common and undivided property of the parties which was kept with Lal Baig the father of defendants-1 to 8 to achieve common object as it was decided at the time when the sons of late Aafiat Khan separated from each other dividing their landed property situated at Khanabad Oshikhandass that Lal Baig shall run business in the shop as owner to the extent of his own share and as tenant on behalf of the other five brothers and accordingly rent was fixed. It was further decided that the rent so fixed shall be paid by Lal Baig to pay the debt obtained commonly by all brothers for construction of the shop.
2. The defendants contested the claim of the respondents/plaintiffs through filing written statements. The divergent pleadings of the parties gave birth to as many as 17 issues. After completion of a full dress trial and hearing to the counsel of the parties, the learned trial court through his judgment dated 25-4-2001 was pleased to decree the suit in favour of the plaintiffs/respondents. This judgment/decree was challenged before learned District Judge by way of filing first appeal but inconsequential vide judgment dated 5-5-2007, hence, this petition for setting aside the judgments/decrees passed by both the courts below.
3. I have heard the arguments of the learned counsel of the parties heatedly advanced before me and have minutely gone through the record built-up as a result of proceedings carried out by the learned trial court.
4. Mr. Amjad Hussain, Advocate the learned counsel for the petitioners in his arguments contended that at the time when the instant suit was filed the defendants Nos. 1 to 8 were minors but the learned court below did not take notice of the fact and failed to appoint any person as guardian and overlooked the essence and mandate of the provisions laid under Order XXXII, C.P.C. The learned counsel although did not point out any mistake of the nature mentioned under section 115, C.P.C. Committed by the learned courts below while returning their, concurrent findings but submitted that since the minor defendants Nos. 1 to 8 have not been provided the facility of guardianad-litem through any order of the trial court as such the evidence brought on record by the plaintiffs against the minor defendants is not. Binding upon them and requested that since the mandatory provisions of Order XXXII, C.P.C. Have not been complied with the impugned Judgments are defective and may be set aside providing fair chance to the defendants to defend the suit.
5. Mr. Muhammad Isa, Advocate the learned counsel for the plaintiffs/respondents while disagreeing with the contention of the petitioner's counsel argued that minor defendants Nos. 1 to 8 have been sued through their mother (defendant-9) who as natural guardian has contested the suit in which she was also interested as co-sharer and throughout the proceedings no objection in this regard was raised and that neither the minor defendants have faced with any awkward situation while defending the suit as such the objection raised by the learned counsel at this belated stage does not tenable in the eye of law.
6. All problems arising out from the suits by or against the minors and the persons of unsound mind are dealt in accordance with the procedure provided and provisions laid under Order XXXII, C.P.C. Vide which every suit by a minor is required to be instituted in his name by a person who in such suit shall be called next friend to the minor. Rule-I suggests that a person who initiates and brings a suit on behalf of a minor automatically becomes his next friend whereas in the case of a minor defendant, an order of the court for appointment of a guardian-adlitem is necessary. The language of Rule I of Order XXXII, C.P.C. Runs as under:-- Rule-1. Minor to sue by next friend.---Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor.
7. Rule-2 of the Order provides that where a suit is instituted against next friend, plaint to be taken off the file but such omission may fairly be regarded as a rectifiable while the language of Rule-3 suggests that where a defendant is a minor, the court on being satisfied of the fact about his minority shall appoint a proper person to be guardian in the suit for such minor to look-after the interest of the minor and in the absence of such appointment the court has no jurisdiction to proceed against and pass a decree against the minor. What does Rule-3 say, is reproduced for ready reference as under:-- Rule-3 Guardian for the suit to be appointed by court for minor defendant.---(1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.
(2) An order for the appointment of guardian for the suit may be obtained upon application in the name and Oil behalf of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
(4) No order shall be made on any application under this rule except upon notice to the minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.
(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree.
8. Rule-4 stipulates as to who may act as next friend or be appointed guardian for the suit. What the language of Rule-4 suggests is reproduced as under:-- Rule-4. Who may act as next friend or be appointed guardian for the suit.---(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit: ' Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.
(2) Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as next friend of the minor or be appointed his guardian for the suit unless the Court considers for reasons to be recorded, that it is for the minor's welfare that another person be permitted to act or be appointed, as the case may be.
(3) No person shall without his consent be appointed guardian for the suit.
(4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardians, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested, and may give direction for the repaym ent or allowance of such costs as justice and the circumstances of the case require.
9. The provisions laid under Rules-1, 2, 3 and 4 of Order XXXII, C.P.C. Suggest that for filing suit by a minor plaintiff, next friend is not to be appointed by the court unless it is clearly shown that he is disqualified to act on account of his interest being in conflict with the interest of minor plaintiff but it is necessary that the fact of defendant being a minor is to be brought to the notice of the court by means of an application under Rule-3 of Order XXXII, C.P.C. And then it becomes the duty of the court to appoint a guardian-ad-litem which is its prerogative. The plaintiff is only to suggest the court to appoint a proper person and in such circumstances court would issue direction to furnish the list of relatives of minor or other suitable persons for choosing better person as guardian-ad- litem and in case of failure to supply the list the court can reject the plaint.
10. In this case the controversial point is that defendants Nos. 1 to 8 were minors at the time when the instant suit was filed and according to the contention of the learned counsel appeared for the petitioners/ defendants it was binding upon the learned trial court to appoint a suitable person as guardian-ad litem to give safeguard to the interest of the minors. I do not agree with the contention of the learned counsel for the reason that at the time when the suit was filed the plaintiffs themselves had nominated the mother of the minor defendants to be guardian and the mother was also party in the suit as defendant-9 having common interest with her minor off springs i,e, the defendants-1 to 8. The nominated guardian did not raise any objection for her being unable to act as guardian rather she accepted the responsibility for being natural guardian of the minor defendants. The object of the provisions laid under Order XXXII, C.P.C. Also do suggest that when a suit is filed against a minor through natural guardian and the court if satisfied for such suggestion formal order of the court regarding appointing a person to be guardian-ad-litem is not necessary rather such appointment order became mandatory when a suit is brought against a minor without a next friend because without a next friend or appointment of a guardian to the minor, no suit could be proceeded on.
11. When a suit is filed against a minor the court while taking notice and after obtaining list of the relatives of the minor, shall appoint a guardian-ad-litem taking into consideration that the relative so appointed shall safeguard the interest of the minor in the suit. In this case the plaintiffs have brought the suit against minor defendants Nos. 1 to 8 through their mother as natural guardian who was also party in the suit as defendant No,9 having joint and common interest in the suit property and later on the role played by the mother in defending the suit shows that she made all possible efforts to safeguard the interests of her own and the minors in the suit property. Record further shows that the mother of the minors appointed a senior and leading advocate to defend the interests of the minors, she produced evidence and her counsel subjected the P.Ws. In lengthy cross-examination leaving no room for the learned counsel to raise any objection in this behalf.
12: The mandate and object of the rules of Order XXII, C.P.C. Is to ensure due and proper representation on behalf of a minor defendant, if it affects the interest of the minor adversely, any departure from such rules could not be condoned by the court, but at the same time when it is found that no damage has caused to the minor, then the non-compliance of any of the rule would be immaterial.
13. So far the merit of the case is concern, the learned counsel although did not try to impeach the evidence produced by the plaintiff stating the same was not sufficient to substantiate the claim of plaintiff. In this regard I am of the considered view that the plaintiffs have established their rights over the suit shop as co-sharers brim fully and the evidence of the plaintiffs so appreciated by the learned courts below was in accordance with its essence, calling no interference by this court.
14. During pendency of the suit two plaintiffs namely Shukrullah Baig and Shah Fareen while relinquishing their claim have withdrawn themselves from the suit, therefore, the remaining plaintiffs would be entitled for 3/6 share in the shop.
15. Consequently, the revision petition being merit less is dismissed. The impugned judgments passed by learned courts below are maintained with only modification that after withdrawal of two plaintiffs from their claim the remaining plaintiffs will now be entitled for 3/6th share in the shop.
File.