' The appeal is preferred against the order of the learned District Judge, Kotli, dated 26th February, 1984, whereupon acceptance of appeal of the respondents, finding of the subordinate Court was reversed and the case was remanded for fresh decision.
2. Qamar Aftab and his brothers purchased the suit land from said Muhammad and others, vendors, through a registered sale-deed, dated 6th May, 1915. Nazir Dad, plaintiff-appellant pre- empted the sale as an owner of the Mahal, wherein the land in suit is situate. The trial Court decreed the suit on 1st March, 1982. On appeal, the learned District Judge reversed the finding of the trial Court and remanded the case for fresh decision after recording evidence of the vendee- respondents.
3. The present appeal raises a controversy as to whether an order of remand is appealable or not as well as the proceedings recorded by the trial Court, whether were illegal for want of evidence of Patwari and Office Qanungo.
4. The suit land was purchased by Muhammad Hussain, in favour of Qamar Aftab, Zahoor Ahmed, Muhammad Saleem, Muhammad Fayyaz and Muhammad Faryad, his sons. The consideration was paid by Muhammad Hussain, before the Sub-Registrar on behalf of the vendees. In the pleadings, the vendees were not entered as minors, therefore, the suit was instituted without a next friend.
However, when it was brought to the notice of the Court that the vendees were minors, a guardian ad litem of the minors was appointed by the trial Court, firstly on 28th September and secondly on 7th November, 1976. Ch .Abdul Karim, Advocate, guardian ad litem, contested the suit on behalf of the minors with the assistance of Muhammad Hussain, their father. On conclusion of the evidence of the plaintiff-pre-emptor, a list of the witnesses of the defendant-respondents, including the names of local Patwari and Office Qanungo, was furnished. Munshi Said Muhammad, local Patwari, appeared in the Court on 18th February, 1978 alongwith the record. His statement was recorded but on inquiry of the learned counsel for the defendants, the witness disclosed that he was not in possession of the register Khasra Girdawari. On this, the learned counsel made a request for adjournment of the case so that the witness may produce register of Khasra Girdawari.
Subsequently, his evidence could not be recorded despite the fact that he appeared on various dates. Likewise, Office Qanungo appeared on various dates. His evidence could not be recorded as he was not in possession of the relevant record. Thus, the evidence of the Office Qanungo was closed on 18th March, 1981. Muhammad Hussain, father of the minor defendants, appeared as a witness on 28th December. In addition to his oral testimony, he produced the sale-deed, Exh.DA/1, copies of the Jamabandi, Exh.DA/1, D.A/2, copies of Khasra Girdawri, Exh. DA/4, DA/5, DA/6 and DA/7 when evidence of the defendant-vendees was closed and the case was adjourned for evidence of the plaintiff in rebuttal. On conclusion of evidence of the parties, the trial Court decreed the suit. On appeal, the learned District Judge reversed the finding of the subordinate Court as, according to his, failure to record evidence of Patwari. Office Qanungo and one of the minor respondents, prejudiced the case of the minors. Thus, in opinion of the learned District Judge, the trial Court being under duty-bound to look after the interest of the minors, failed to discharge its duty and this resulted in injustice.
5. A preliminary objection raised herein is that no appeal lie against {{IRDI TEXT}}
6. The relevant provisions of law applicable to an order of remand are provided under Order XLIII, rule 1, clause (u), C. P. C., which postulate that an appeal shall lie from an order under rule 23 of Order XLI remanding a case, where an appeal would lie from the decree of the appellate Court, Rules 23 and 25 of Order XLI are the relevant rules which apply to the remand order passed in an appeal. Rule 23 contemplates that where the Court from whose decree an appeal is preferred, has disposed of the suit upon a preliminary point and the decree is reversed in appeal, the appellate Court may, if it thinks fit, by order remand the case and may further direct what issue or issues shall be tried in the case so remanded and shall send a copy of the judgment and order to the Court from whose decree the appeal is preferred, with directions to re-admit the suit under its original number in the register of Civil suits, and proceed to determine the suit; and the evidence, if any, recorded during the original trial shall, subject to all just exceptions, be evidence during the trial after remand. Rule 25, on the other hand, postulates that where the Court from whose decree the appeal is preferred, has omitted to frame or try any issue, or to determine any question fact, which appears to the appellate Court essential to the right decision of the suit upon merits, the appellate Court may, if necessary, frame issues and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required; and such Court shall proceed to try such issues and shall return the evidence to the appellate Court together with its findings thereon and the reasons therefor. The evident distinction between Rules is that in the first case:
(i) an order of remand confines to a finding recorded upon a preliminary point;
(ii) the appellate Court which passes the order of remand, is empowered to further direct that the issues shall be tried;
(iii) the Court to which the case is remanded, is under a duty to determine the suit as a whole in the light of evidence, already recorded and additional evidence recorded on remand;
(iv) the memorandum of appeal is not retained on the file of the appellate Court; and
(v) the decision of the lower Court is definitely reversed. ' In the other case, the requisite conditions are,--
(i) the appeal is retained on the file of the appellate Court;
(ii) if necessary, fresh issues are framed and are referred for trial to the Court from whose decree the appeal is preferred;
(iii) issues framed by the appellate Court and referred to the subordinate Court are decided by taking additional evidence; and
(iv) the evidence recorded on such issues alongwith the finding is returned to the appellate Court.
'The aforesaid distinction in the two provisions, being very clear, it hardly leaves a scope to misconstrue and misapply the provisions to a given case. In the instant case, it is undenied that the learned District Judge reversed the finding of the subordinate Court as a whole and directed it to re-enlist the suit in its original number in the register of Civil suits, and on taking requisite evidence of the defendants, record fresh decision on the basis of evidence already recorded and the additional evidence. The appeal was also not retained on the file of the appellate Court. Thus, the standared laid down in rule 23, was obviously attracted in the present case. The only condition absent in the cases is that here the decree appealed against was not passed upon a preliminary point. Be as it may, in absence of any other relevant provisions in the Code, the provisions of rule 23 are found closely applicable to the proposition in hand. It is already noticed that an order passed in the light of the provisions of rule 23, Order XLI, C. P. C. was appealable under Order XL1II, rule 1 (u) of the Code. The preliminary objection is, therefore, not sustained.
7. The major controversy, as evident from the finding of the learned District Judge, is that the defendants who are minors, their interest was not properly watched and omission to record evidence of the Patwari and Office Qanungo resulted in failure of justice. Order XXXII of the Code governs the suits by or against the minors and persons of unsound mind. Rule 3 of Order XXXII, postulates that where the defendant is a minor, the Court, on being satisfied on the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. Sub-rule (2) further laid down that 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. Sub-rule (4) imposed a restriction in the shape that no order shall be made on any application under this rule except upon notice to minor and to any guardian of the minor appointed or declared by any authority competent in that behalf, or where there is no such guardian, upon notice to the father or other natural 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. As the question of appointment of guardian of the minor is not disputed, it need not be analysed in detail. Suffice it to mention that in the instant case, despite the fact that the minors were not sued through a guardian, or father of the minors, yet on receipt of the notice, Muhammad Hussain, father of the minors, accepted the notice on their behalf, and it was reported that the minors may be represented by a lawyer. It was in the light of the consent of Muhammad Hussain, father of the minors, that Ch.Abdul Karim, Advocate was appointed guardian ad litem. It may be mentioned that two orders were passed for the appointment of guardian ad litem as at one stage it was reported that Qamar Aftab and Zahoor Ahmed had gone to England and they were not served. Therefore, the first order was passed in respect of defendants Nos.3 to 5 and subsequent order was passed in respect of Qamar Aftab and Zahoor Ahmad, on execution of service on them. The report of Muhammad Hussain appears on the back of the summons issued for appearance on 16th June, 1976. It was reported that Qamar Aftab and Zahoor Ahmad had gone out of the country and Muhammad Saleem, Muhammad Fayyaz and Muhammad Faryad, minor defendants, shall be represented by the father. Another report appears on the back of the summons, issued for appearance on 21st July, 1976. It was reported that Muhammad Saleem, Muhammad Fayyaz, and Muhammad Faryad, minors could not be served unless their next friend or guardian ad litem was appointed. This is just to point out that Muhammad Hussain, father of the minors, accepted the notice on their behalf and reconciled with the appointment of Ch.Abdul Karim, Advocate as guardian ad litem, of his minor son. It is, therefore, possitively established that the trial Court, at no stage, committed an error of departure from the relevant provisions of law
8. It is well-accepted that in absence of an objection to legal character of appointment of guardian ad litem, fraud, collusion or gross negligence of the guardian, a decree passed against the minor cannot be denied to take its effect. In the present case, there was no case of illegal or irregular appointment of guardian ad litem or fraud, collusion of gross negligence of the guardian ad litem. In absence of such an objection and proved facts in support thereof, the decree passed against the minors cannot be set aside. In AIR 1916 All. 353 where the appointment of the guardian ad litem was irregular, it was held that where there has been an irregularity in the appointment of a guardian ad litem for a minor defendant in a suit, the moment it is shown that there has been no fraud and that the minors interests have not been prejudiced by the irregularity, the minor's right to set aside the proceeding must be denied. It was further held that the question whether the appointment of a guardian for a minor defendant was irregular, is distinct from the question whether, if irregular, the minor was prejudiced by the appointment, as these are two different issues and both have to be established by evidence.
' In AIR 1921 AU. 393, it was held that whatever irregularity in appointment of guardian ad litem may be, the moment it is shown that there has been no fraud and that the minor's interests have not been prejudiced, the minor's right to set aside the proceedings must be denied.
' In AIR 1924 Mad. 763, it was observed that no irregularity by way of an omission to send a notice required by Order XXXII, rule 3(u), C. P. C., will operate to render void the presumed representation of the minors in suit, unless such an omission has in face prejudiced their defence and such prejudice is not a matter of assumption or presumption but of proof. Before the Court will declare that they were not properly represented on account of such irregularity, the minors must prove that they had a good defence which by the negligence of the guardian had not been put forward.
' In AIR 1958 All. 437, it was held that the absence of notice to the minor under Order XXXII, rule 3(u), C. P. C. is a mere irregularity and does not make the appointment of a guardian without due notice to the minor void.
' In PLD 1954 Dacca 69, in a suit filed by a minor, to set aside the decree passed against him, on the ground of irregular appointment of the guardian, it was held that the decree which a minor seeks to set aside on the ground of irregular appointment of his guardian ad litem, cannot be set aside unless it is established that, by the appoint ment of the guardian, prejudice was caused to the minor plaintiff.
' In PLD 1962 Pesh. 171, in Saadullah Khan's case, the minors were not represented by the guardian in Court below but were represnted by Reader of Court in second appellate Court, on an objection against the decree against the minors, it was observed that minors not represented by guardian in Courts below but represented by Reader of Court in the second appellate Court, the judgment of the lower Court having merged into judgment of the appellate Court, the objection was not available to hold that the minors were not properly represented. It was further -observed that once the decree was obtained against the minors, it can only be set aside on account of fraud and not on the ground of mistake.
' PLD 1963 B J 30 and 1968 SCMR 991 have no application to the proposition in hand, as in those cases, the minors were not represented by guardian ad litem. Thus, the dictum of those cases is not enforceable in the present case.
9. The pith and substance of the aforesaid dictum recorded in the leading authorities, is that even in a case where the appointment of guardian ad litem of a minor is irregular, such an irregularity was curable and presence of irregularity in the appointment of the guardian was not sufficient by itself to set aside the decree against the minor. In order to seek reversal of the decree, it was imperative to establish fraud, collusion and prejudice. In absence of one of the aforesaid conditions, decree passed against the minors, well-represented by guardian ad litem, cannot be set aside. In the instant case, it is noticed that in addition to the care and vigilance of guardian ad litem, father of the minors equally pursued the interests of the minors as he was shown always present during the proceedings in the subordinate Courts. Whenever guardian ad litem was unable to appear in the Court, it was the father of the minors who regularly appeared and sought adjournment to do the needful on behalf of the minors. Thus, in present case, the minors are shown to be doubly represented.
10. The objection that failure to record the evidence of Patwari and Office Qanungo, injured the interests of the minors, is devoid of force. It is noticed that the Patwari produced copy of Jamabandi, Exh.D.A and his evidence was not concluded on account of absence of register of Khasra Girdawari. But the fact remains that the copies of the Khasra Girdawari, Exhs.DA/4, DA/5, DA/6 and DA/7, were produced by the father of the minors and the same were duly proved and admitted in evidence. The Office Qanungo was sought to be produced to prove the record of rights.
As the said witness was not in possession of any record of rights, no purpose could be served for recording statement of such a witness. I repeatedly asked the learned counsel for the respondents to explain as to what further evidence, already not on record, was sought to be produced by the respondents. I even agreed to admit such evidence at this stage. Mr. Aleemuddin, the learned counsel for the respondents, was unable to hint at or even point out as to what evidence was deficient in the case and was necessary to be produced in support of the claim of the respondents.
It is already noticed that in absence of prejudice, decree passed against minor, well-represented by the guardian ad litem or natural guardian, cannot be reversed. Nazir Dad, plaintiff-appellant, asserted his superior right as an owner of agricultural land in the Mahal. The claim can be reasonably established by documentary evidence from the record of rights. The pre-emptor's claim is rebuttable by an identical evidence. Even the counter-claim of equal status of vendees, is to be proved by such an evidence. In addition to oral evidence of three D.Ws., copies of relevant record of rights have been already admitted in evidence. This is why the learned counsel for the respondents failed to disclose the particulars of proposed evidence. It is also noticed that memorandum of first appeal contains no allegation of so-called prejudice. The finding relating to prejudice and injustice to the interests of minors, is self sought, artificial and arbitrary. I find no reason to allow perpetuation of unwarranted findings of the learned District Judge. For the remand of the case would serve no purpose other than to defeat the legal right already accrued in the shape of decree in favour of the plaintiff-pre-emptor.
11. The appeal is, therefore, allowed. The order of remand is set aside the appeal is restored on the file of the learned District Judge, Kotli who shall decide it on merits.