' SADIQ HUSSAIN BHATTI, J.---This High Court Appeal is directed against the judgment dated 13-1- 2006 and decree dated 20-2-2006 passed by a learned single Judge of this Court in Suit No,1633 of 2001 whereby the suit was decreed in favour of the plaintiffs in the sum of Rs,4,780,420.
2. Brief facts of the case are that on 8-11-2000, one Muhammad Naveed, who was riding a motorcycle was hit by a trailer, bearing No,JT-6006, at Napier Road, Karachi. The said Muhammad Naveed sustained fatal injuries and died in the hospital. The trailer was registered in the name of defendant No,1/appellant No,1, namely, Miss Aisha Qayum daughter of Abdul Qayum and the same was plied under the control and possession of defendants Nos.1 and 2/appellants Nos.1 and 2.
Defendant No,3/respondent No,5 was the driver of the trailer at the time of accident and, thus, was the servant of defendants Nos.1 and 2/appellants. Thereafter, a suit, bearing No, 1633 of 2001 was filed by the four minor daughters of the said deceased, through their next friend Muhammad Hanif son of Abdul Sattar. Notices were issued to the defendants but the same could not be served.
Consequently, they were served through publication in the daily Nawa-e-Waqat and service was held good by the learned single Judge. Accordingly, the learned single Judge directed the plaintiffs to file affidavit-in-ex parte proof which was duly filed by the next friend of the plaintiffs, namely, Muhammad Hanif. It was deposed that the trailer owned by the defendant No,1- /appellant No,1 and plied and managed by defendants Nos.1 and 2/appellants Nos.1 and 2 driven by defendant No,3/respondent No,5. Knocked the motor cycle of the deceased Muhammad Naveed who sustained fatal injuries and later on succumbed to his injuries. It was further deposed that the deceased at the time of his death was drawing a salary of Rs,6000 per month and had left behind the plaintiffs as well as his widow and mother and father as his legal heirs. The life expectancy of the deceased was shown to be 75 years in view or long life span in his family.
3. Since the defendants were declared ex parte, therefore, the above averments were not controverted and, therefore, the learned single Judge, vide the impugned judgment and decree, considering the life expectancy of the deceased to be 70 years decreed the suit in the sum of Rs,4,780,420 in favour of the plaintiffs in the following words:- "The evidence brought on record is not controverted from the side of the defendants, it will be just and proper to hold that deceased father of the plaintiffs would have survived upto the age of 70 years, could have earned Rs,6000 per month as average income, which could increase upto 20% to 30% in the coming years and deceased ought to have spent 1/5 on his personal expenses. After deduction of the expenses to the tune of 1/5 of the amount earned by the deceased, the remaining amount would be claim of the compensation payable to the plaintiffs under the Act, 1855, come to Rs,47,80,420.
' It is against the said judgment and decree that the present High Court Appeal has been filed.
4. We have heard the arguments of Mr. K.B. Bhutto, learned counsel for the appellants. The respondents were served through publication but none is present on their behalf.
5. Before proceeding any further, we would like to point out that this high court appeal also appears to be barred by limitation. Under Article 151 of the Limitation Act, an appeal from a decree or order of a High Court in the exercise of its original jurisdiction can be filed within 20 days of the date of the decree or order. In the present case, the suit was decreed on 13-1-2006 and the application for certified copy was filed on 28-1-2006. Thereafter, copy was made ready and delivered on 2-3-2006 but the appeal was presented on 16-3-2006. Thus, from the date of filing application for certified copy and till filing the appeal a total of 29 days were consumed. This means that the appeal was barred by nine days. It was mandatory for the appellant to have filed an application under section 5 of the Limitation Act seeking condonation of delay. However, no such application was filed. On this ground also the appeal is liable to be dismissed. However, we have also considered the matter on merits as well.
6. Mr. K.B. Bhutto, learned counsel appearing on behalf of the appellants contended that defendant No,1 in the suit, who is alleged to be the registered owner of the trailer, was not described as a major or minor in the array of the defendants which was not only mala fide but also in violation of provisions of Rule 1(d), Order VII, C.P.C. He submitted that defendant No,1 was a minor at the time of institution of the suit as she was 17 years and one month old when the suit was filed without appointment of guardian ad litem and therefore, the suit was not maintainable under Order XXXII, Rule 3, C.P.C. According to the learned counsel the suit was not maintainable and the impugned judgment and decree for the above reason, are a nullity in law. The learned counsel also argued that the learned single Judge failed to frame issue with regard to the income of the deceased and decreed the suit on the basis of the deposition made in the affidavit-in-ex parte proof filed on behalf of the plaintiffs without any corroborating evidence. The learned counsel also stated that on coming to know about the ex parte judgment and decree the appellants/defendants Nos.1-2 also filed an application under section 12(2), C.P.C. Which is pending in view of the present High Court Appeal.
7. During the course of his arguments, as well as in the written synopsis filed by the learned counsel for the appellants, it has not been denied that the father of the plaintiffs/respondents-1 expired due to the fatal injuries received by him when he was hit by the trailer owned by appellant No,
1. It is an admitted position that respondent No,5, the driver of the trailer at the time of the accident, was booked for the offence of rash and negligent driving resulting in the death of Muhammad Naveed under crime No,81/2000 lodged at Police Station Napier. In a case under Fatal Accidents Act, 1855 when it is proved by admission or by evidence that the deceased expired due to injuries received in the accident then the only ground that could be set up by the defendants is to allege and prove contributory negligence. In this case the appellants, particularly the appellant No,2 preferred to remain away from the proceedings before the trial Court. Thus, the learned trial Court was left with no alternative but to decree the suit on the basis of the averments made in the plaint as well as in the affidavit in evidence filed in ex parte proof by the next friend of the plaintiffs.
8. Taking up the arguments advanced by the learned counsel for the appellants, the learned counsel firstly argued that in the title of the suit the defendant No,1 was not described as major or minor and such concealment of the fact was not only mala fide but also in violation of the mandatory provisions of Order VII, Rule 1(d). C.P.C. The learned counsel then argued that the defendant No, 1, at the time of institution of the suit, was a minor and since no guardian ad litem, therefore, the suit was not maintainable in view of the provisions of Order XXXII, Rule 3, C.P.C. And the judgment and decree passed in such suit is nullity in the eye of law.
9. Rule 1(d) of Order VII. C.P.C. Stipulates as under:-
(1) Particulars to be contained in plaint:--The plaint shall contain the following particulars:-
(a) to (c). Not relevant .
(d) Where the plaintiff or the defendant is a minor or a person of unsound mind a statement to that effect;
10. A perusal of the plaint in the suit shows that at the time of the filing of the plaint the plaintiffs were minors and such fact has been clearly mentioned in the title of the suit and the suit was filed by their next friend. So far as the age of the defendant No,1 is concerned, it could not be said that there was any mala fide or concealment on the part of the plaintiffs as they were not personally acquainted with the defendant No,1 and thus not aware of her age. The plaintiffs filed the suit against the appellants on the basis of the information obtained from the Excise and Taxation Department. In the Excise, and Taxation Department only name, paternity and address of the owner of a vehicle is mentioned and not the date of birth. Thus, it cannot be said that the plaintiffs deliberately concealed this fact from the Court. On the contrary it was the duty of the appellant No, 2 to have come forward and inform the Court about the age of the defendant No,1 and since he was father of the defendant No,1, he was the obvious person to be appointed guardian ad litem.
11 Order XXXII, rule 3, C.P.C. Reads as under:-- 3.---(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 a guardian for the suit may be obtained upon application in the name and on 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 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 case the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under the 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, continues 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.]
12. When rules 1 and 2 of the above quoted Order XXXII are read in juxtaposition it transpires that whereas rule 1 makes it mandatory that if the defendant is a minor, the Court on being satisfied of the fact of his/her minority shall appoint a proper person to be guardian for the suit for such minor but rule (2), which is very relevant for the purpose of deciding this appeal states that an order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. Thus, if the plaintiff is not aware of the age of the defendant or has not mentioned that the defendant is a minor then an application can be filed on behalf of the minor for appointment of guardian ad litem. Therefore, it would be seen that the duty is cast not only on the plaintiff to make an application for appointment of a guardian ad litem but such application can also be filed on behalf of the minor also which was not done by the appellant No,2.
In this case we cannot held plaintiffs to be responsible for concealing such fact or violating the above quoted rules due to the fact that the plaintiffs were not aware whether defendant No,1 was a minor or not. The trailer was registered in the name of the defendant/appellant No,1 and since she was a minor it was duty of the defendant/appellant No,2 who must have purchased the trailer in her name; to have come forward and contest the suit on his own behalf as well as on behalf of the defendant No,1 as their interests were common.
13. Another aspect which also requires consideration is that the father of the defendant No,1 was himself arrayed as defendant No,2. He was served on the address given by him to the Excise and Taxation Department which is same as the address of defendant No,1. Thus, it is proved beyond any reasonable doubt that the father and the daughter are living under the same roof. However, he did not join the proceedings or inform the Court that the defendant No,1 is a minor. If it is assumed for the sake of argument that the defendant No,2 was not looking after the trailer and its business, at least he could have come forward and informed the Court accordingly and should also have informed the Court that the defendant No,1 is a minor. He, however, preferred to keep away from the suit proceedings. It was only after the judgment and decree was passed in the suit that he came forward alongwith the defendant No,1 to set up the above case.
14. Learned counsel for the appellant, in support of his contentions, has relied on the following case law:--
(a) Baghi Gul and others v. Ali Waz Khan and others (2003 CLC 1147),
(b) Yar Muhammad v. Mst. Amnat and others (1998 CLC 1355(sic)),
(c) Allah Ditta and others v. Malik Ahmed Bakhsh and others (PLD 1975 Lahore 403), and
(d) Ram Chandra Arya v. Man Singh and others (AIR 1968 SC 954).
15. In the case of Baghi Gul and others (supra), a learned single Judge of the Peshawar High Court held as under:- "As a result of the examination of the authorities cited by Mr. Abdul Latif Khan, no doubt is left in my mind that once it is held that the minor was not duly represented in the proceedings which culminated in a decree or order against him, the decree must be regarded as a nullity or void, and not merely voidable at the instance of the minor on attaining majority. The authorities have clearly, and, if I may say so with respect, rightly, drawn a distinction between the case where a duly appointed guardian of the minor acts negligently or fraudulently, and a case where it cannot be said that there was any duly appointed guardian. In the former case the only course open to the minor is to have the decree set aside, but in the latter he is entitled to regard the decree as a nullity and not binding on him. He need not sue to have it set aside."
16. In the case of Yar Muhammad (supra), proceedings for appointment of guardian ad litem of the minor were initiated but at no point of time, before the pronouncement of judgment and decree, a guardian ad litem was appointed. Thus, it was in the knowledge of the trial Court as well as the parties that one of the defendants was a minor.
' Accordingly, the High Court allowed the revision application and set aside the judgment and decree on the ground that no guardian ad litem was appointed for the minor.
17. In the case of Allah Ditta and others (supra), the facts were that the plaintiffs filed a suit for pre- emption against defendants for possession of certain lands. It was an admitted positions that defendant No,7 was of unsound mind while defendants 8 to 10 were minors. The suit was decreed against all the defendants on account of a compromise effected by defendants Nos.1-3 while ex parte proceedings were ordered against defendants 4-10. When execution application was filed, defendants 7-10 filed an application under section 47, C.P.C. Objecting to the decree on the ground that the same was a nullity on account of their being under a legal disability and further that they had not been served upon. The executing Court upheld the objections and refused to execute the decree against the said defendants.
18. The cited case is distinguishable and is not relevant to facts in the present appeal. In the cited case the plaintiffs were aware of the legal disability of the above defendants and even then they did not apply for appointment of guardian ad litem to represent them. Even those defendants who were major at the time of the institution of the preemption suit did not inform the Court and entered into a compromise with the plaintiffs.
19. In the present case the plaintiffs were not aware of the minority of the defendant No, 1 who even otherwise attained majority before the pronouncement of judgment and decree in the suit. The defendant No,2, who was aware of the age of the defendant No,1, did not come forward to protect the interest of his daughter as well as his own interest. The defendant No,2 got the said trailer registered in the name of his daughter without mentioning that she is a minor and now he wants to take advantage of his own mistake or concealment of fact which is not permissible. If the plaintiffs were well aware that the defendant No,1 is a minor or that the defendant No,2 has informed the Court that the defendant No,1 is a minor and then no guardian ad litem was appointed, to protect her interest then the judgment and decree in the said suit would have been a nullity as against the defendant No,l.
20. It is also noteworthy that in the cited cases, including the case of Ram Chandra Arya, the dispute related to ancestral lands/house in which the minors/persons of unsound mind were direct stakeholders while in the present case the defendant No,2 was the real beneficiary of the trailer but for reasons best known to him he got the same registered in the name of his minor daughter. The interest of the defendants was, therefore, common.
21. The upshot of the above discussion is that the since the plaintiffs were not aware of the age of the defendant No,1 and that the defendant No,2, who was father of the defendant No,1, did not come forward to inform the Court about the minority of the defendant No,1, therefore, the plaintiffs could not be penalized for no fault on their part. Even otherwise, the defendant No,1 attained majority on 7-10-2002 whereas the judgment and decree in the suit were passed on 13-1-2006 and 20-2-2006 respectively. In the intervening period no effort was made to contest the suit on merit and it was allowed to proceed ex parte. In the peculiar circumstances of this case, we are of the opinion that neither the provisions of Order VII, Rule 1(d) of the C.P.C. Nor the provisions of Order XXXII, Rule 3, C.P.C. Have been violated. On the contrary, the defendant No,2 was watching the proceedings from distance, content in the knowledge that he could assail the judgment and decree on the above ground before the appellate Court to delay the matter further.
22. The learned counsel next argued that no issue vas framed as to the alleged income of the deceased and the trial Court decreed the suit on the basis of the affidavit-in-ex parte proof on behalf of the plaintiffs, without corroborative evidence.
23. This argument is also not tenable on account of the provisions of Order XIV, C.P.C. Rule (1) of Order XIV states that "issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other." Thus, if a material proposition of fact or law is affirmed by one party and is denied by the other then there an issue would be framed and the parties would be required to lead evidence in respect of their respective claim and the issue would be decided in favour of the party which proves its case by leading evidence, however, if a material proposition of fact or law is affirmed by one party and is not denied by the other then there would be no issue at all and the Court would not be required to frame issues.
24. In para 1 of the written synopsis filed on behalf of the appellants it has been stated that the plaintiffs filed the suit alleging that on 8-11-2000 one Muhammad Naveed who was riding motor cycle, got fatal injuries in the accident caused by the trailer No,JT-6006 due to rash and negligent driving by the defendant No,3 at Napier Road, Karachi and died in the hospital. In para 2 of the same it has been stated that the trailer was registered in the name of defendant No,1/appellant No,1, Aisha Qayyum with the Excise and Taxation Department and defendant No,2 was the co- owner of it. It was further stated that the deceased Muhammad Naveed who was aged 27 years was earning Rs,6000 per month at the time of his death. All these facts, alleged by the plaintiffs were un rebutted and, in the present case it was alleged that the income of the deceased is Rs,6000 per month and this fact was not challenged by the defendants. In this, view of the matter, no error was committed by the trial Court when it accepted the version of the plaintiffs in respect of the accident which caused the death of the deceased Muhammad Naveed and also accepted Rs,6000 as the per month income of the deceased. Therefore, the learned single Judge was fully justified in passing the judgment and decree without framing issue on the point of income of the deceased.
25. It has also been argued that wrong address of the appellants was mentioned in the suit. Suffice it to say that the plaintiffs obtained the address of the appellants/defendants from the office of the Excise and Taxation Department where the address of the owner of the trailer was given by the appellant No,2 himself. Therefore, it cannot lie in the mouth of the appellants to say that their address in the plaint of the suit was wrong.
26. It is very painful that the accident which deprived the plaintiffs/ respondents 1-4 from the patronage of their father occurred in the year 2000 and the suit filed in the year 2001 is still under litigation in the form the present appeal. On the one hand the minors were deprived of the love and affection of their father at such tender ages and on the other they have been deprived of their butter and bread due to lingering on of - the case.
27. The upshot of the above discussion is that this appeal was liable to be dismissed on the ground of limitation as well as on merits. However, since we deemed it expedient not to dismiss the same on technical ground due to the reason that the appellants were declared ex parte in the suit, therefore, we have decided to dispose it of on merits. On merits also, we have found that this appeal is liable to be dismissed.
28. In view of the above discussion, we dismiss this appeal and upheld the judgment and decree passed in the suit.