The petitioners/plaintif fs assailed order/decree dated 30th October , 2010 and judgments and decrees dated 29th December , 2017 (impugned order/judgme nt and decrees) passed by Senior Civil Judge, Pishin and District Judge, Pishin (trial and appellate Court), whereby the suit of the petitioners/plaintif fs was dismissed and the appeal filed was also met with the same fate.
2. Precise facts of the case are that the petitioners/plaintif fs filed a suit for declaration, possession, cancellation of Mutation No. 598. agreements dated 7.9.2005, 23.2.2006 and permanent injunction against the respondents/defendants, in respect of land and house situated at Haikalzai District Pishin in the Court of Senior Civil Judge, Pishin with the following prayer: a. To declare that the plaintiffs have purchased a land and a house situated at Killi Haikalzai bearing Khewat Khatooni Nos. 83/86 to 127 alongwith total Aab and Arazi from Defendant Nos. 1 and 2 through agreements dated 7.2.2006, and 31.8.2007, 12.7.2006, 14.7.2006 in sale consideration amount of Rs. 200,0001- and in this regard Mutation No. 593 and also effected in the name of plaintiffs on dated 4.3.2006 and thereafter , the Mutation No. .657 was also effected in the name of plainti ffs and if any portion is not mutated also direct to Defendant No. 4 to transfer to the plaintiff and cancel the agreements dated 7.9.2005 and 23.2.2006 and Mutation No. 598. b. To declare that the Mutation No. 598 being effected illegally and unlawful as null and void and the same is liable to be cancelled. c. To direct the Defendant No. 3 to hand over the possession of house in dispute to the plaintiffs; d. Any other relief which this Hon'ble Court may found deem fit in the circumstances of the case, may also be awarded in the interest of justice and equity . e. Relief.
3. The Respondents/Defendants No. 1 & 3 filed separate written statements repudiating the claim of the petitioners/plaintif fs and prayed for dismissal of the suit, whereas the Respondents/ Defendants No. 2 & 4 were proceeded against ex-parte.
4. Out of the pleadings of the parties the trial Court framed as many as five issues. The petitioners/plaintif fs produced nine witnesses, whereafter; they filed an application under Order XXXII Rule 3, CPC for appointing Haji Abdul Qayum as guardian ad-litem of Petitioner/Plaintif f No. 7, who is minor . The Respondent/Defendant No. 3 submitted rejoinder to the application and prayed for dismissal of the application. The trial Court vide order dated 30th October , 2017 while dismissing the application also dismissed the suit. The petitioners/plaintif fs being aggrieved filed appeal before appellate Court who vide judgment and decree dated 29th December , 2017 dismissed the same, hence this revision petition.
5. The instant revision petition was admitted for regular hearing on 26th March, 2018. On 9.7.2018 the counsel for Respondent No. 3 filed power . Whereas the Respondent/Defendant No, 2 refused to receive notice as such proceeded ex-parte. The record further depicts that despite service the counsel for Respondent/Defendant No. 3 was not in attendance. Same situation was on 18.10.2019, 6.12.2019, 9.12.2019, 8.5.2020, 18.6.2020, 16.7.2020, 11.9.2020, 23.10.2020, 1.12.2020, 1.3.20 21, 8.3.2021, 30.3.2021, 24.5.2021 and 16,6.2021, which shows lack of interest, therefore, I have left with no other option but to hear the learned counse l for the petitioners/plaintif fs and decide the petition.
6. Heard and perused the record. The trial Court vide impugned order dated 30th October , 2017 while dismissing the application under Order XXXII Rule 3, CPC also dismissed the suit of the petitioners/plaintif fs. The relevant para is reproduced hereunder: "11. I have heard the parties and thoroug hly perused the entire record, which transpires that, at the time of filing of suit, the age of plaintiff No. 7 would be approximately 09/10 years. At this belated stage when the case is about to ripe up, the appointment of guardian Ad-Litem is totally against the law. The civil Court cannot commit such illegal act while working judicially under the law of land, because the suit in hand was absolutely incompetent and illegal since its time of institution. The plaintiffs and their counsel had deliberately and purposely had concealed the facts from the Court for a long period of three and half years. In this situation there is no way to retain a defective suit on the file of the Court, but to dismiss the same. Thus the suit alongwith application for appointment of guardian is dismissed accordingly . Decree sheet be prepared. Case file after its completion be cosigned to record."
7. The appellate Court upheld the order of the trial Court. Under Order XXXII Rule 1, CPC minor to sue by next friend. Under Rule 2 of Order XXXII, CPC where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file. The Rule 3 of Order XXXII, CPC relates to appointment of guardian for minor defendant. It would be appropriate to reproduce Rule 3 of Order XXXII, CPC, which reads as under: "Order XXXII Rule 3, CPC: 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 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 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 natur al 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. The record transpires that the petitioners/plaintif fs filed suit, included the name of Hashmatullah as plaintif f No. 7 (who at that time was minor). In the title of the plaint the plaintif fs clearly mentioned that plaintif f No. 7 (Hashmatullah) is minor , but the trial Court rejected the suit. Under Order VII Rule 11, CPC the Court is empowered to reject the incompetent suit from its inception. Under Order X Rule 1, CPC the Court shall ascertain from each, party or his pleader whether he admit or deny the allegation, meaning thereby that on first hearing the Court ascertain the fact from the parties. The record reveals that the trial Court failed to comply the referred to provision.
Filing suit without appointment of next friend cannot invalidate the proceeding . Reliance is placed on case Muhammad Nawaz Khan v . Islam-ud-Din, 1992 MLD 1523 , wherein it was held: "Though the term 'plaint' is not defined in Civil Procedure Code yet Order VII, Rule 1, Civil Procedure Code provides about what it must necessarily contain. One of the requirements laid down in it is that where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect, must be made in the plaint. Civil Procedure Code prescribes various Rules as to the form of the plaint and other particulars. But a non-compliance with these Rules will not necessarily make the plaint invalid. See AIR 1921 Sindh 166. Appendix A' of the Schedules dealing with title of suits provides for forms in case of minors or persons of unsound mind suing through a next friend. It was not denied that the plaint was defective in that respect as it did not state that plaintiff No. 2 was minor . Further suit was not stated to have been filed through a next friend. The defect is there. Nonetheless, knowing that plaintiff No. 2 was minor and was incapable to sue by himself, his father , who was his natural guardian, also signed a Vakalatnama in favour of the Advocate on his behalf. In this view; there is no ground to suppose any deception or an attempt to derive some illegal gain or advantage from the opposite side. The omission to sue through a next friend as required by Rule 2 of Order XXXII, Civil Procedure Code could be fairly regarded as a rectifiable procedural error capable of being remedied by proper steps taken in that direction.
Omission/error is not of colossal magnitude to prove fatal to the proceedings lawfully commenced. Laws of procedure have their own place in jurisprudence. They are meant to a subserve and advance the cause of justice.
Moral of law teaches for decision on merits and that factor , the Court must always keep in forefront of its mind, because it exists to judge on the valuable rights of the parties before it and to do justice between them.
Performance of public functions is a sacred duty but justice is a sacred trust. Therefore, instead of throttling the litigation without its trial on merits on account of a mere procedural mistake, the learned Judge ought to have allowed the plaintiffs an opportunity to correct the error by permitting amendment to the plaint. That course would not have caused any prejudice to the other side. No question of limitation was involved in it because in view of an Explanation to Section 3 of the Limitation Act, a suit is instituted in ordinary cases , when the plaint is presented to the proper officer; any defect inform of representation envisaged by Order XXXII, Civil Procedure Code notwithstanding. On this point, I can safely look for assistance to the judgment of the Supreme Court in Muhammad Ismail etc. v. Muhammad Sarwar etc. (1980 S CM R 254). Though it was a case relating to a defendant suffering /from disability but the ratio of the case shall equally apply to the case of the plaintiff. In these circumstances this Court shall take upon itself to adopt the correct course to remedy the defect in the plaint to arrest further delay . As the learned Judge below did not firmly express on the findin gs recorded on other Issues and had dismissed the appeal on the ground, which is not acceptable to this Court, I would allow the revision and setting aside his order remand the case to the learned District Judge, Lahore, for a decision afresh of the undecided points in appeal-. The plaintiffs shall be given a reasonable opportunity for remedying the defect in the plaint. After receipt of amended plaint from them, the substituted defendant in the suit, shall also be allowed a reasonable time for submitting his written statement. It may be observed that the learned District Judge shall either hear the remanded appeal himself or have it heard by a learned Additional District Judge in the District. There shall be no order as to costs in this Court."
In Ghulam Muhammad Khan's case 1986 MLD 682 , it was held: "Omission on part of trial Court in recordi ng formal order of appointment of guardian, held, was at 'nest irregularity which did not render judgment and decree of trial Court invalid--Such omission also had no adverse effect on interest of minor and validity of proceedings."
9. The record reveals that the suit filed by seven plaintif fs including minor . Order XXII Rule 3, CPC provides procedure on death of one or more plaintif fs. The Rule reads as under: "ORDER XXII RULE 3, CPC. Procedure in case of death of one of several plaintif fs or of sole plaintif f-- (1)
Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiffs alone 1[, or on receipt of an intimation of the death of such plaintiff from the person nominated by him for that purpose under rule 26, Order VII], or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
(2) Where within the time allowed by law no application is made or intimation is given under sub rule (1), the Court may proceed with the suit, and any order made or judgment pronounced in such suit shall, notwithstanding the death of such plaintiff, have the same force and effect as if it had been made or pronounced before the death took place." -
10. Both the Courts below have come to wrong conclusion and dismissed the suit as well as appeal of the petitioners/plaintif fs, Order XXXII Rule 3, CPC and Order XXII Rule 3, CPC should be read conjointly not in isolation. The minor is one of the plaintif fs. There is no allegation that the suit filed by other plaintif fs with collusion of defendant which af fect the interest of minor .
Keeping in view of above circumstances the instant revision petition is accepted. The impugned orders and decrees dated 30th October ,2017 and 29th December , 2017 passed by Senior Civil Judge, Pishin and District Judge, Pishin are set aside. The case is remanded to the trial Court for decision afresh on merit in accordance with law. No orders as to costs.