' ALI AKBAR QURESHI, J.---This Constitutional petition calls in question the validity of an order dated 03.10.2015 and 10.09.2013, passed by the learned Courts below whereby the application under section 12(2) of Code of Civil Procedure, 1908, filed by the respondents was allowed.
2. Shortly the facts as stated in the record are; that a suit for specific performance of an agreement to sell was filed by the petitioner against the predecessor in interest of the respondent namely Khalid Mehmood; that during the pendency of the .Suit Khalid Mehmood died and his legal heirs were placed on record by the petitioner; Ali Raza and Abdul Qayyum legal heirs of deceased Khalid Mehmood were minors at the time; the list of legal heirs of deceased Khalid Mehmood was placed on record but neither the Court nor the petitioner prayed for the appointment of the guardian-ad- litem to fulfill the mandate of Order XXXII, Rule 3(iii) of the Code of Civil Procedure, 1908. Thereafter no one appeared on behalf of the respondents/defendants including the minor; therefore, they were proceeded against ex parte on 24.10.2008 and subsequently after recording the ex-parte evidence of the petitioner/plaintiff an exparte judgment and decree was passed on 09.01.2010.
3. The respondents/minors on coming to know the ex-parte judgment and decree dated 09.01.2010, filed an application under section 12(2), C.P.C. Before the learned trial court on the ground, that the guardian-ad-litem was not appointed and the minors were not competent in law to prosecute or defend the suit, therefore, the judgment and decree has been obtained by playing fraud and misrepresentation.
4. The learned trial court on the basis of the available record, accepted the application under section 12(2), C.P.C. And set aside the judgment and decree dated 09.01.2010 against which a civil revision was filed before the learned Addl District Judge, Khanewal, which was dismissed. Hence, this writ petition.
5. Heard. Record perused.
6. The only question involved in this case which requires adjudication of the matter as to whether the minor is competent to file or defend a suit without the appointment of the guardian-ad-item or guardian duly appointed by the competent Guardian Judge. "
As per record, in this case the guardian-ad-litem was not appointed by the Court nor any prayer was made by the petitioner, therefore, this illegality cannot lightly be ignored keeping in view the principle laid down by the Hon'ble Supreme Court of Pakistan, in judgment cited by learned counsel for the petitioner, titled "Tanveer Mehboob and another v. Haroon and others" (2003 SCM R 480), the Hon'ble Supreme Court of Pakistan, has observed, that if a minor defendant in a suit was represented by his father, brother or sister as co-defendant without any conflict or interest and such co-defendant sincerely and effectively defended the rights and interest of the minor in the property it would be deemed that the rights were sufficiently guarded and mere fact that the minor was not sued through guardian-adlitem would not make the decree invalid. The afore- referred esteemed judgment has misinterpreted and misconstrued by the learned counsel for the petitioner.
7. The most important words used by the Hon'ble Supreme Court of Pakistan in the judgment supra are "sincerely" and "effectively" defended the rights and interest of the minors.
' The meanings of word "Sincerely" are: genuinely, honestly, really, with all sincerity, truly, truthfully, wholeheartedly, with all one's heart, with good faith; honestly, openly, and without deceit or fraud.
AND ' The meanings of word "effectively" are; efficiently, successfully, skillfully, ably, competently, capably and proficiently.
In this case firstly it is to be seen as to whether petitioner/plaintiff fairly assisted the Court and whether the petitioner committed any fraud or misrepresentation on the demise of the predecessor of the minors namely Khalid Mehmood when a ,list of legal representative was placed on record, wherein the age of the minors as 16 and 17 years was mentioned but the petitioner/ plaintiff while filing the amended plaint under the order of the Court neither disclosed the age of the minors who were impleaded as defendants nor asked to the Court to appoint the guardian- ad-litem. The B aforesaid act of the petitioner, sufficiently proves the mala fide and the fraud committed by him.
8. Secondly, as to whether the brother and sister of the minors sincerely and effectively safeguarded the interest of the minors. After perusing the record, the answer is negative. Although the brother and sister of the minor filed power of attorney but thereafter disappeared and facilitated the other side to get the ex-parte judgment and decree therefore, both the learned Courts below rightly accepted the application and set aside the judgment and decree obtained by the petitioner by playing fraud and misrepresentation.
' The Hon'ble Supreme Court of Pakistan in similar circumstances wherein an ex-parte decree was passed against minor, has observed in a judgment cited as Mst. Fauzia Parveen alias Fauzia Tiwana v. Mst. Sahib Khatoon and others (1988 SCM R 552), as under:-- ' "In this case, the guardian had failed to do her duty and was liable to be removed and substituted by the Court. As the Court happens to be the custodian of the interest of the minors it has to be watchful whether a party discharges its duty or not. We are, therefore, in agreement with the view taken by the two Courts that this omission to ensure proper representation of the minors was a material factor to be taken not of while considering the application for setting aside the ex- parte decree. The minors were, in any case, neither properly served nor properly represented.
' So far as the factual aspect of the case is concerned we do not want to interfere with the concurrent findings of fact recorded by the District Judge, and upheld by the learned Judge in Chambers holding that keeping in view that there were Pardah nashin ladies and minors involved the service should have been got effected in a more inspiring manner than was according to the two Courts done in the case.
' As regards the question of limitation in filing the application for setting aside the ex parte decree there is, as observed by the learned Judge in the High Court no objection taken at the proper stage by the plaintiff and no issue in that behalf was framed."
' In another judgment cited as Tanveer Mahboob and another v. Haroon and others (2003 SCM R 480), the Hon'ble Supreme Court of Pakistan has dealt with the duties of Guardian-ad-litem wherein it is observed, that although the non-appointment of the Guardian-ad-litem is sometimes of technical importance but if such omission caused prejudice to the minor the Courts will take care the interest of the minor. The same is reproduced as under:-- ' "The non fulfillment of formal requirement of appointment of a minor defendant under Order XXXII, Rule 3, C.P.C. Would not affect the proceedings in the suit and the decree if ultimately passed, unless it is shown that due to omission of appointment of guardian ad-litem of a minor, who was being represented by his natural guardian, the minor was caused prejudice and the objection would be only of technical importance."
' In another judgment of the Hon'ble Supreme Court of Pakistan titled Mst. Muhammadi and others v. Ghulam Nabi and others (2007 SCM R 761) it has been observed as under:-- "8. It is also a settled law that the non-compliance of the provisions of Order XXXII, Rule 12, C.P.C.
Would be fatal only in those cases where the interest of the minor was not fully protected and prejudice was caused to the interest of minor as result of such non-compliance as the law laid down by this Court in Mst. Afzal Begum's case (PLD 1979 SC 30). In the present case minors are beneficiary."
9. Learned counsel for the petitioner also submitted that the learned Court did not appoint the Guardian-ad-litem but the same is not helpful or has any substance in view of the principle laid down in the afore-said esteemed judgment and further for the reason, that initially the minors were arrayed as defendants through their real brother and sister who could not watch or safeguard the interest of the minors. It is also well settled principle of law, that the suit can be instituted by or on behalf of a competent person and in any case, in the instant case, the minors were arrayed as defendants who were legally not competent to safeguard their interest.
10. Even otherwise the petitioner should not be shy or scared to prosecute his case before the learned trial court particularly when the minors during this period has attained age of majority.
11. Learned counsel for the petitioner also argued the case at some length and sought some time to further prepare his brief but could not be succeeded to point out anything which is illegal, unlawful and against the law. Therefore, I see no reason to interfere with the concurrent findings on facts as well as on law recorded by the learned court below.
12. Resultantly, this writ petition is dismissed being devoid of force. No order as to costs.