1. On 19-11-1978, the respondent filed an eviction application against three persons, namely (1) widow of Kazi Noorul Haque, (2) Abdullah son of Kazi Noorul Haque, (3) Rashida daughter of Kazi Noorul Haque on the grounds that the rent of the house has not been paid to him from January, 1976, and that the house is required by him for his personal bona fide use. A rejoinder to this application was submitted on 29-1-1979. It was stated in the rejoinder that the legal representatives had not been joined the notice under section 30 -of Displaced Persons (Compensation and Rehabilitation) Act has not been served; the rent had been paid regularly; and the premises are not required by the applicant for personal bona fide use.
2. In amended application for eviction was filed by the respondent implead--ing legal heirs of late Kazi Noorul Haque as respondents. The respondents Nos. 4 to 8, who were minors, were sued through their mother Mst. Fatima Bibi respondent No. 1. A preliminary issue to the effect whether the application is bad for failure to serve notice under section 30 of the Displaced Persons (Compensation and Rehabilitation) Act (hereinafter referred to as Act of 1959) was framed. The issue was decided against the appellants. It was, held that since the Act of 1959 has been repealed in 1975 and the eviction applica--tion has been filed in 1978, therefore, there was no need to serve notice under section 30 of the Act. The respondent did not press the issue in respect of default, therefore only one issue as to whether the applicant requires the premises for bona fide and reasonably for his own use and occupation remained in the field. The parties to the proceedings led evidence and the learned Rent Controller by order dated 31-8-1980, decided the issue in affirmative in favour of the respondent. The appellant being aggrieved has filed this appeal.
3. The learned counsel for the appellant has not pressed his objections regarding the notice under section 30 of the Act of 1959, in view of the judgment reported as Muhammad Ramzan v. Ch. Bashir Ahmad (PLD 1981 SC 340This judgment supports the view taken by the learned Rent Controller.
4. The learned counsel assailed the order of the learned Rent Controller on the ground, that the appellants 5 to 8 were described as minors in the amended eviction application, but no application seeking the appointment of the guardian of these minors was submitted as contemplated under Order XXXII, rule 3, C. P. C. The amended application was thus misconceived and unless the impleaded minors have been sued through guardian, to be appointed by a Court, no proceedings could have been lawfully taken in the case. The consequence is that the appellants Nos. 5 to 8 were never on the record of the case in accordance with law. The learned counsel for the respondent has submitted that provision of C. P. C. Are not attracted and it is the discretion of the Rent Controller to adopt any procedure, he considers just, in the circumstances of the case. He has referred to Khadim Mohy-ud---Din and another v. Ch. Rehmat AU Nagra and another (PLD 1965 SC 459and Ayub Khan and another v. 1-azal Hay acrd others (PLD 1976 SC 422). No doubt the Code of Civil Procedure as a whole is not. Applicable to the proceedings. Under the Rent Restriction Ordinance, but the principles laid down in certain provisions of this Code would apply which are not merely procedural but of fundamental character and go to the root of the cause. It is a cardinal principle of law that a decree against a minor is nullity in the eye of law, if it has been passed without his proper representation. Thus the principle laid down in Order XXXI1, C. P. C. Has to be applied to the proceedings under Rent l Restriction Ordinance. In applying such provisions the principle that a. Minor should have proper representation in such proceedings must be taken into consideration.
5. In the present case Mst. Fatima Bibi widow of late Kazi Noorul Haque had been impleaded as one of the respondents. The minors had been used through their mother Mst. Fatima Bibi. The defence was not conflicting. The cause of action against the minors and their mother is same and indivisible. The interest of the mother was not adverse to the minors, therefore, the application against the minors through their mother was competent and mere non-observance of certain provisions of C. P. C. Does not affect the entire proceedings. One of the minors had appeared as a witness on behalf of the appellants in proceedings before the Rent Controller: In such circumstances the interest of minors was fairly protected in these proceedings. In a case where the minor has been properly represented, the procedure laid down in Order XXXII, C. P. C. May not be complied with in its strict sense, in proceedings under Ordinance VI of 1959, and non-com--pliance of Order XXXII, rules 4 (3) and 3(4) is not fatal to the proceedings. This controversy has been resolved long age in Mst. Bibi Walian v. Banke Behari Pershad Singh (30 1 A C 182 (P C)wherein it was held :- "Where it appears that in a suit the minors interests were effectively represented by their mother with the sanction of the Court, the absence of the formal order appointing her and an immaterial defect of service of summons on the minors and their guardian, not shown to have caused any prejudice to then, are mere irregularities which, under section 578, would not be ground for reversing judgment and execution proceedings on appeal, or in a separate suit for that purpose."
6. In Ramchandar Singh and another; v. B. Gopi Krishna Dass and others (AIR 1975 Pat. 260it has been observed :- "Where, however, there is a mere defect such as absence of a formal order appointing a person as guardian-ad-!Item, notwithstanding that the notices in terms of Order XXXII, rule 3(4) and Order XXXII, rule 4(3), have been served such a defect in the appointment of the guardian will not necessarily be fatal to the; proceeding, unless it is shown that the minor was prejudiced by the defect, because such a defect is a mere irregularity and a defect of mere form, and not of substance, and It does not go to the root of the jurisdiction of the Court to render any judgment against such a minor."
7. In Mashal Khan v. Fazal Karim and another (PLD 1963 Pesh, 93the following observation is relevant :- "The provisions of Order XXXII, rule 3, Civil Procedure Coda, 1908, regarding the representation of minor litigants, should normally be applied strictly, but any failure to comply with then is an irregularity which is curable, provided no ,prejudice has been caused to the minor, and his interests were duly represented by the irregularly appointed guardian-ad litem or by some other defendants who had identical interest with the minor in the matters in controversy in the suit. But if it is found that the minor has been prejudiced, then it must be held that he was not duly represented in the proceedings, and accordingly he cannot be regarded as a party to them, with the result that any order or decree passed therein would not be binding on him. Such a decree or order would be nullity in the eye of the law as haring been passed without jurisdiction against a person who was not a party before the Court."
8. In the present case the interest of the minors was properly guarded by the mother who is their natural guardian. The mother had identical interest with the minors in the matter.
9. In Saadullah Khan and others v. Kaki Jan and others PLD 1962 Pesh.l71, it has been held that though the minors were not represented by the guardians in the lower Courts but since they were represented in the second appellate Court that is the Court of Judicial Commissioner and since the judgments of two Courts below have merged into the judgment of appellate Court. Thus the representation of the minors was proper. The present appeal has been filed by the 8 appellants.
10. The appellants Nos. 5 to 8 have preferred the appeal through their mother and next-friend the appellant No. 1 Mst. Fatima Bibi. Thus the appeal has been filed through the next-friend by the minors. No where it is stated that there was clash of interest between the appellant No. 1 and appellants Nos. 5 to 8 (the minors). In the light of the authority of Peshawar High Court referred to above (P I, D 1963 the representation of the minors at the appellate stage is proper and legal. The judgment of the trial Court was merged into the judgment of appellate Court. The interest of the minors according to appellant No. 1 has been properly protected by her as their guardian, therefore, any irregularity if committed does not call for the setting aside the judgment and decree of the lower Court as being nullity in the eye of law.
11. I, therefore, reject the contention of learned counsel for the appellants on this score.
12. On merits the learned counsel for the appellants has stated that two witnesses who have been appeared on behalf of the applicant/respondent were interested witnesses. Their evidence is inadmissible being hearsay in nature, because they have not brought on record, the primary evidence to show that the applicant bad retired from Railway service. These witnesses have stated a fact which is in their own knowledge and, therefore, the production of any record is not material.
13. The appellants at no stage of the proceedings insisted on the prosecution of such record. The learned counsel had also assailed the evidence of the applicant on the same ground. That he has not produced any document from the Railway Administration to show that he has been retired. The argument is misconceived. The statement of the applicant is sufficient to establish this fact and this fact has not been controverted by the applicants through any evidence. The applicant- respondent has not been confronted by the appellants in cross-examination that he has not been retired, therefore, the question of retirement of the appellant cannot be challenged. The applicant has stated that he has started law practice in Quetta. It has not been disputed that he is a practising Advocate, therefore the contention that he has been retired from service has been established by this fact. The respondent has categorically contended that he has no other house to live in Quetta and this house is being required by him for his personal use. The bare statement of the respondent is sufficient to establish this fact. The evidence produced by the appellants could not rebut the contention raised by the applicant in his evidence. There ; is no proof that applicant want to sell his house. The appellants have failed to establish that the respondents want to settle at Jacobabad. Mere allegation without any substantial proof does not carry any weight. This appeal has no force which is hereby dismissed, without any order as to costs. I allow the appellants one month's time to vacate the premises.