' Ata Muhammad petitioner, who is a minor, purchased some land situated in Mauza Toba Kalundar Shah, Tehsil and District Bahawalnagar. Chiragh and his two sons, respondents herein, instituted a suit for possession in order to pre-empt the sale against Ata Muhammad (minor) through his father Muhammad Shafi. The learned Civil Judge, Bahawal nagar, having held the respondents' right of pre-emption superior than the vendee/petitioner decreed the suit, vide judgment and decree dated 18-4-981. Against this decree the vendee/petitioner through his father went in appeal. It was urged before the learned first Court of appeal that because the trial Court had failed to appoint guardian ad litem of the vendee/petitioner in accordance with rule 3, Order XXXII, therefore, the total proceedings were rendered defective and consequently the impugned judgment and decree was liable to be cancelled. Findings on other issues were also challenged.
Learned Addl. District Judge, however, affirmed the findings of the learned trial Court on all the issues and dismissed the appeal. Dealing with the objection that the learned trial Court had omitted to formally appoint guardian ad litem of the petitioner, learned first appellate Court observed that the plaintiff-respondents proposed Muhammad Shafi father of the petitioner as a guardian ad litem and their application was accompanied by list of near relatives of the minor also who were given notice and in pursuance thereof Muhammad Shafi (father of the petitioner) appeared and filed written statement duly thumb-marked as guardian of the minor. In the circumstances, the learned first appellate Court held that it cannot be said that the minor petitioner was not represented by anybody during the trial, therefore, the decree and judgment of the trial Court was protected under section 99 of the C.P.C. which provides that no decree shall be reverse or substantially varied nor any case shall be remanded in appeal on account of any error, defect or irregularity in any proceedings in the suit not effecting the merits of the case or the jurisdiction of the Court. Consequently the appeal of the petitioner was dismissed. The instant revision petition has been filed challenging validity of judgments and decrees of the two Courts below.
2. Learned counsel appearing for the petitioner has raised the following points:
(a) That the proceedings in the trial Court vitiated because no formal order appointing guardian ad litem of the minor defendant/ petitioner had been made as envisaged in rule 3, Order XXXII, therefore, the petitioner was not legally represented, as a result thereof the proceedings were rendered defective, hence judgments and decrees passed in such proceedings are not sustainable in law; (b) That Muhammad Shafi, father of the petitioner is an incapacitated person and was not capable of safeguarding the interest of the minor, hence minor, representation through him was no represen tation in the eye of law. Reliance is placed on Mashal Khan v. Fazal Karim and another PLD 1963 (W.P.) Pesh. 93. (c) That application for additional evidence moved on 16-4-1983 before the Additional District Judge was not attended to and no order accepting or rejecting the same was passed and the Court had thus failed to exercise jurisdiction vested in it.
3. I have gone through the judgment of the two Courts below and also perused the documents appended with memo. of revision in the light of the contentions of the learned counsel appearing for the petitioner.
4. As for objections (a) and (b) it may be noted that Ata Muhammad petitioner was sued through his father Muhammad Shafi who appeared in pursuance of notice and filed written statement. It is true that no formal order appointing him as guardian ad litem has been made but factually represented the minor throughout the proceedings at the trial and fully participated therein. It was at no stage agitated that he was incapacitated or that his interest in the matter in controversy in the suit was adverse to that of the minor. It is held in Mashal Khan v. Fazal Karim and another (Supra): "It will be seen that the consensus of judicial authorities appears to be that the provisions of Order XXXII, rule 3, C.P.C., regarding the representation of minor litigants, should normally be applied strictly, but any failure to comply with them is an irregularity which is curable, provided no prejudice has been caused to the minor, and his interest were duly represented by the irregularly appointed guardian ad litem.
In the instant case, the minor petitioner was represented by no less a person than his real father.
There is no evidence whatsoever that he is mentally or physically an incapacitated person. Record shows that he filed appeal in this case before the first appellate Court and then revision in this Court which furnishes complete proof that he does not suffer from any physical or mental ailment rather he appears to be a deligent and vigilent litigant having full understanding of nature of the suit filed against his son. Omission to appoint him formally as guardian ad litem of the petitioner is mere irregularity as has been held in the above-quoted precedent. No prejudice by this omission is shown to have been caused to the interests of the minor, therefore, the objection is repelled.
5. Regarding objection at (c) it may be observed that the learned appellate Court in para. 1 of the judgment has clearly stated that "two applications for permission to adduce additional evidence were also filed which have been rejected today vide separate order". These remarks in the judgment are sufficient to debunk the objection that those applications were not adverted. It is not shown that the discretion so exercised by the learned Additional District Judge was improper. No other point has been raised.
6. For what has been stated above, this revision petition has no force which is hereby dismissed in limine.
M.B.A. .