' The following facts are relevant for the decision of this revision petition by the plaintiff-pre-emptor against the judgment and decree of the learned Additional District Judge dated 9-9-1979, whereby the decree passed in his favour by the learned Civil. Judge, dated 24-6-1978 was set aside and case remanded to the trial Court with the direction for its disposal in accordance with law after allowing the then minor to defend his case.
2. Sale of land measuring two Kanals 10 Marlas i.e. 50/1518 share out of total land measuring 75 Kanals 18 Marlas bearing Khasra No.2287/ 1220 situated in village Baist Khel, District Bannu in favour of Shaista Khan and his son Akbar Ali through Mutation No.9650 attested on 10-5-1976 was pre- empted by Faiz Muhammad petitioner herein basing his superior .right of pre-emption on co- sharership, participation in amenities and contiguity by bringing the present suit in the Court of Civil Judge, Lakki on 9-5-1977. The sale consideration of Rs.3,000 entered in the mutation of sale was alleged to be fictitious while the actual sale consideration was stated to'be Rs,200 fixed and paid to the vendor.
3. On 24-6-1977, the date fixed for the appearance of the parties, both the defendant-vendees appeared in Court. As defendant No.2 Akbar All appeared to be minor, an application was made by the plaintiff for the appointment of Shaista Khan defendant No.1, father of defendant No.2, as his guardian which was placed on the file. Memo. of addresses was, also placed on the file on his behalf as well as on behalf of his minor, son as his guardian on 24-6-1977 and the case was adjourned for filing of written statement to_ 12-7-1977. On 12-7-1977 written statement was filed on behalf of both the defendants wherein several legal and factual objections were raised to the maintainability of the suit. It was alleged in the written statement that the land in suit was purchase for the construction of residential .houses and that after the purchased they have consturcted houses over it and have since been residing in it. The learned trial Judge on the pleadings of the parties framed as many as 6 issues for the decision of the case on merits. Special power of- attorney on behalf of defendant No.2 in favour of defendant No.1 duly attested by Notary Public was also placed on file on 19-7-1977. During the proceeding both the parties made an application before the Court on 2-2-1978, wherein they claimed to have compromised the matter on the following terms and conditions:-
(i) that the suit is to be decreed after determination of the market value of the suit property;
(ii) that the assessm ent of the improvements made over the suit land and the market value is to be worked out by Maqbool Anwar, Tehsildar as an Arbitrator.
' Statement of the plaintiff and defendant No.1 was recorded in Court, however, subsequently instead of Arbitrator Maqbool Anwar was asked to act as a Commissioner rather than an Arbitrator.
On the receipt of the report of the Commissioner plaintiff's suit was decreed by the trial Court vide its order, dated 24-6-1978, on payment of Rs.3,000.
4. On appeals filed by both the defendants, the learned appellate Court set aside the judgment and decree of the learned Civil Judge and remanded the case with an observation that defendant No.1 was not a duly appointed guardian of Akbar Ali minor defendant, therefore, he was not provided proper opportunity to defend his case, however, at the time of passing of order of remand it was held that Akbar All defendant No.2 had since attained majority.
5. Mr.Saadullah Khan Mian Khel, Advocate for the petitioner and Mr. Khurshid Alam Sherazi, Advocate-for the respondents present and heard.
6. The learned counsel for the petitioner contended that an application for the appointment of guardian of the minor defendant was made at the earliest and the Court after entertaining it .placed it on the file. Thereafter, both the defendants filed their joint written statement resisting the suit of the plaintiff on identical grounds. Unfortunately there had been no evidence on the record to show the exact age of defendant No.2 at the relevant time. However, as has been observed by the learned Additional District Judge defendant No.2 attained majority, during the pendency of the first appeal. Even during the pendency of the suit defendant No.2 acted as major by appointing defendant No.1, his father, as an attorney by exalting a power-of attorney in his favour. It was further argued that no objection to the appointment of guardian was raised by defendant No.1 or by defendant No.2 till the suit was decreed in terms of the report of the Commissioner appointed through a compromise statement. It was urged that even no such objection was raised in the grounds of appeal before the learned Additional District Judge where the suit of the petitioner has been decreed on compromise; especially when defence of both the defendants was identical formal defect if any would not be stretched to re-open the entire case.
7. After hearing the learned counsel for the parties and going through the various judgments cited by the learned counsel and perusal of the relevant record it cannot be established as to what was the age of Akbar Ali at the time of the institution of the suit. It is, however, not denied that- from his general appearance he looked to be minor, therefore, the plaintiff-petitioner made an application to appoint Shaista Khan his father and defendant No.1 his guardian-ad-litem. This application was placed on the file in the presence of Akbar Ali and his father. The relevant order in this respect reads as under:- [URDU TEXT] ' Though no specific order for appointing guardian of the minor was made as required under Order XXXII, Rule 3, C.P...0 however, in the circumstances of the case then the minor's interest was looked after by his father, defect if any, in not passing formal order for the appointment of guardian would not vitiate the trial of. the case as no prejudice appears to have been caused to the minor as Shaista Khan was throughout recognized by the Court as guardian of his minor son. In support of the proposition refernece can be made. to Prem Kumar and another v. L.Girdhari Lal and others AIR 1934 Oudh 171 and Umar and others v. Mahabir Lal Sahu and others AIR 1940 Pat.
59. In both these Division Bench judgments it was held that in the absence of formal orders of appointment the guardian-ad-litem represented the minor throughout the proceedings culminating in a decree. It .was held that minor was effectively represented and no prejudice caused to him. The decree so passed against the minor was neither annulity nor invalid. This principle was subsequently followed in Fatima Bibi and 7 others v. Jamil-ur-Rehman PLD 1982 Quetta 7, wherein it was held that: "The minors had been sued through their mother Mst. Fatima Bibi. The defence was not conflicting.
The cause of action against the minors and their mother is same apd 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 effect the entire proceedings.
' It was further observed that: ' 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-compliance of Order XXXII, rules 4(3) and 3(4) is not fatal to the proceedings."
' The observatipn was based on a judgment reported in 30 IAC 182 (P C) in Mst. Bibi Walian v. Banke Behari Pershad Singh and Ramchandar Singh and another v., B.Gopi Krishna Dass and others AIR 1975 Pat.
260. Reference has also been made to Mashal Khan v. Fazal Karim and another PLD 1963 Pesh.
93.
8. The aforementioned view further gets support from a judgment of the Supreme Court ( A J & K) given in Iftikhar Ahmed v. Muhammad Hussain KhanPLD 1978 SC ( A J & K ) 40, wherein after discussing the Wits' of the case it was held:- "The mere fact that in the appointment of the guardian, no notice was served on the minor there is no clear cut order of the Court in the appointment of the guardian, does not per se render the decisions invalid."
' It was further observed that: "These minor omissions pointed by the learned counsel for the petitioner are only irregularities and do not in any way render the judgments and decrees of the Courts as invalid unless it is shown that the guardian was either negligent or was in collusion with the other party or there was any fraud committed."
9. The upshot of the above discussion is that though there was an application made by the plaintiff for the appointment of the guardian-ad litem of the minor which was accepted as such by the Court but no formal order was passed thereon, that thereafter the minor was properly represented throughout in the proceedings resulting in a compromise decree, the interest of the minor with his father being identical and the compromise arrived at by the father not challenged as collusive or fraudulent, no prejudice. appears to have been caused warranting interference with the decree in question granted by the trial Court on the basis of such compromise.
' For the reasons stated above the judgment and order of the learned District Judge is not maintainable as he failed to take into consideration all these important aspect of the case.
Consequently the judgment and order of the learned District Judge is set aside. As the learned District Judge has failed to give his decision on the question of market value and compensation for improvement worked out by the Commissioner which too was challenged in appeal before him, this case is remanded to the learned District Judge for giving decision on merits on the question of market value and compensation for improvement along. Rest of the finding recorded by the learned lower Court with regard to the compromise decree is, however, maintained. Parties are left to bear their own costs.