' This is plaintiff's revision petition directed against order dated 10-4-1988 passed by learned District Judge, Multan through which judgment and decree dated 26-5-1986 passed by learned trial Court decreeing the suit of pre-emption of the petitioner has been set aside and the case remanded to the learned trial Court for fresh disposal.
2. The sale which was sought to be pre-empted was made through sale-deed executed and registered on 22-12-1979. The suit was initiated on 21-12-1980 in which none of the defendants/respondents were shown as minors. Notices were issued to the defendants in response of which Mr. Abdul Haq Dughal, Advocate appeared as counsel of the defendants who filed memo of appearance on 26-5-1981 and had been appearing on behalf of the defendants on the dates fixed in the suit thereafter. It appears that Fazal son of Qutab defendants No,22 died during the pendency of the suit and the amended plaint was filed on 13-12-1981 after impleading his legal representatives a defendants 22, 22-A, 22-B, 22-C and 22-D as defendants in his place. Out of these legal representatives of Fazal Mst. Manzooran who was impleaded as defendant No,22-C was shown to be minor and she was sued through Mst. Jannat her real mother as her next friend as mentioned in the amended plaint. Since said Mst. Jannat could not be served in spite of adjournment of the case for various dates, the Court through order dated 20-12-1983 appointed reader of the Court as guardian ad-litem of said Mst. Manzooran minor defendant No, 22-C who filed written-statement on behalf of the said defendant and had been defending her till 16-6-1984 as on none of the dates fixed thereafter in the suit the presence of Reader of the Court has been recorded as guardian ad-litem of the said minor defendant. A power of attorney (vakalatnama) was filed in the Court executed by defendants in favour of Syed Muhammad Hussain Shah Bokhari, Muhammad Jaffar Jawaid and Syed Shaukat Hussain Bokhari, Advocates on 30-6-1985. This has been thumb marked by Ghulam Qadir on behalf of Koura defendant No, 38 as his next friend though in the plaint they were not shown to be minors and were not sued through their fathers as guardian ad-litem. On behalf of defendant No, 35 Noor Muhammad defendant No,36 Manzoor and defendant No, 37 Ghafoor it has been thumb marked by their father Sher Muhammad as their next friend who were not stated to be minors. Mushtaq Ahmad defendant No,41 has put his own signatures. Mst. Jannat has thumb marked this power of attorney on her own behalf and indicated she has also thumb marked the same as Walia of Mst. Manzooran, aforementioned minor daughter of Fazal who was impleaded as defendant No,22-C and also Mst. Mehran defendant No, 22-B another daughter of Fazal who was not shown as minor in the amended plaint. Muhammad Nawaz defendant No, 39 has also thumb marked the same. Subsequently, on 11-12-1985 second amended plaint was filed in which legal representatives of Falak Sher defendant No, 26 were impleaded as defendants 26-A, 26-B who were his mother and brother respectively. In the said amended plaint legal representatives of Abdur Rehman defendant No, 28 were impleaded as defendants No, 28-A, 28-B and 28-C who were his widow, minor son and minor daughter respectively. Minor daughters defendants 28-B and 28-C were sued through their real mother Mst.
Jewan Mai as next friend who herself was also impleaded as defendant No,28-A. In this amended plaint Muhammad Nawaz defendant No, 39 was shown to be a minor who was sued through his father Mokha as his next friend. Likewise Mushtaq defendant No, 41 was al o shown to be minor who was sued through Muhammad Fazal his real father his next friend. On 11-12-1985, an application was also made under Order 32 Rule 3, C.P.C. For appointment of those persons as guardian ad- litem of these defendants through whom they were imp'eaded as defendants as next friend. t may be mentioned here that the plaintiff examined her attorney as her own witness in affirmative evidence on 26-3-1985. Apart from this oral evidence she also produced copy of Shajra Nasib and the sale-deed as documentary evidence. The abovementioned amended plaint was filed in pursuance of order dated 10-12-1985 passed by the Court in which it was recorded that defendants Nos. 26 and 27 had died about which amended plaint was to be filed after imple ding their legal representatives. It may be noted here that as matter of fact defendant No, 27 had not died who is still alive and both the learned counsel for the parties agreed that through slip of the pen instead of writing defendant No,28 who in fact had died the Court had written by mistake defendant No, 27.
The order dated 18-12-1985 passed by learned trial Court shows that Mst. Jewan Mai defendant No, 28-A was appointed as guardian ad-litem of defendants 28-B and 28-C after recording her statement that she had no objection to her appointment as such. It has been mentioned in the order dated 22-12-1985 that the guardian ad-litem of defendants 16, 35 to 39 and 41 had not appeared and the case was adjourned for 8-1-1986 for appearance of the guardian ad-litem of the said defendants in person. On 8-1-1986 the statement of Sher Muhammad real father of minor defendants 35 to 37 was recorded who agreed to his appointment as guardian ad-litem of the said defendants. Likewise, the statement of Mokha real father of defendant No, 39 Muhammad Nawaz was recorded who agreed to act as his guardian ad-litem. The learned trial Court after completion of these formalities made a formal order for appointment of Sher Muhammad father of defendants 35 to 37 minors as the guardian ad-litem and Mokha as guardian ad-litem of defendant No,
39. On 16-1-1986 the learned trial Court after recordng the statement of Ghulam Rasool appointment as guardian ad-listen of defendant No,
16. The statement of father of Ramzan minor defendant No, 1 that he had no objection to his Muhammad Fazal father of Mushtaq Ahmad minor defendant No,41 was also recorded regarding his no objection to his appointment as guardian ad-litem therefore, a formal order was passed for appointing him as guardian ad-litem of defendant No,
41. The case was adjourned to 29-1-1986 for the evidence of the defendants. The defendants produced the entire evidence except the evidence of one of the defendants as his witness on behalf of the defendants on 29-1-1986. The case was adjourned for two or three dates for recording the statement of one of the defendants which was ultimately recorded on 3-2-1986 and thereafter the case was adjourned for evidence of the plaintiff in rebuttal and after recording the said evidence in rebuttal of the plaintiff the learned trial Court through judgment dated 26-5- 1986 decreed the suit holding that the plaintiff had superior right of pre-emption.
3. This judgment and decree was assailed by defendants before the learned lower appellate Court through an appeal which has been disposed of by the impugned order dated 10-4-1988 and the case was remanded to the learned trial Court for disposal afresh by holding that all the proceedings taken previous to the appointment of guardian ad-litem of the said minor defendants as also thereafter were vitiated because the law was dot followed with regard to appointment of the guardian ad-litem of minor defendants.
4. It is manifest that initially Mr. Abdul Haq Dughal, Advocate appeared in the suit on behalf of all the defendants and filed memo of appearance. He has mentioned in this memo that he had been instructed by the defendants to appear on their behalf in the suit. This memo of appearance was filed obviously because at that time power of attorney i.e, Vakalatnama executed by the defendants was not made available to him. Before the second amended plaint was filed on 11-12- 1985 in which Noor Muhammad, Manzoor, Ghafoor Ahmad and Koura defendants 35 to 38, Muhammad Nawaz defendant No, 39 and Mushtaq Ahmad defendant No, 41 and Muhammad Ramzan defendant No, 16 were shown as minors and sued through their fathers as guardian ad- litem a vakalatnama had already been placed on the record on 30-6-1985 as mentionedabove which was thumb marked by Sher Muhammad on behalf of defendant Nos. 35 to 37 whereas on behalf of Koura defendant No, 38 his father Ghulam Qadir thumb marked it as his guardian ad- litem and on behalf of defendant No, 16 namely Ramzan his father Ghulam Rasool thumb marked it as his guardian ad-litem being his father though they were not shown as minors in the plaint present on the record at that point of time. Mushtaq Ahmad defendant No, 41 had himself put his signatures on this power of attorney and it appears that he was not minor as in the memo of appeal filed by defendants before learned lower appellate Court the defendants themselves have not shown him as minor. Defendant No, 41 Mushtaq appears to have been erroneously shown as minor in the second amended plaint filed on 11-12-1985. It can safely be concluded that from the very start the said guardians ad-litem of the minor defendants were in the knowledge of the suit having been filed and they instructed Mr. Abdul Haq Dughal, to appear on their behalf who filed memo of appearance and subsequently they executed power of attorney in favour of the aforementioned three Advocates on behalf of the minors as their guardians ad-litem being their fathers which furnishes strong basis for holding that they had earlier instructed Abdul Haq Dughal, Advocate to appear on their behalf. Though memo of appearance is not considered valid mode of appointment of an Advocate by a party in the suit but this circumstances can certainly be looked into in order to determine whether the guardian ad-litem who executed power of attorney on 30- 6-1985 were looking after the interests of minors prior thereto by instructing an Advocate to appear on their behalf.
5. The formal orders for appointment of the fathers of these minor defendants except defendant No, 22-C were made after 11-12-1985 though they had already executed power of attorney in that capacity in favour of the three learned counsel. After they were appointed as guardians ad-litem by the Court they did not claim that the evidence in firmative of the plaintiffs already recorded should be recorded again. An order was passed for recording evidence of defendants to which they did not object and in fact produced the evidence and after their evidence the evidence in rebuttal of the plaintiff was also recorded without objection. There is no plea raise in the memo of appeal before the learned lower appellate Court that the defendants were prejudiced on account of failure of the Court to appointment their guardian ad-litem before the evidence in affirmative of the plaintiff was recorded. The judgment and decree of the learned trial Court was challenged on merits.
6. The learned lower appellate Court took the view that the proceedings were vitiated on account of the fact that the application moved by the plaintiff on 11-12-1985 under Order 32, Rule 3, C.P.C.
Praying for appointment of fathers of the minor defendants as guardians intern was not supported by an affidavit and formal order of their appointment as guardian ad-litem having been passed after evidence in affirmative bf the plaintiff had been recorded on 26-3-1985 therefore, the proceedings taken in the suit before and thereafter vitiated.
7. I have heard learned counsel for the parties. In the background of the facts and circumstances of this case, I called upon learned counsel for the defendants to satisfy me as to how the said defendants could be held to have been prejudiced by non-observance of mere technicalities with regard to appointment of guardian ad-litem of the minor defendants when their interest was being looked after by their fathers who were ultimately appointed formally guardian ad item, argued that Reader of the Court was appointed as guardian of defendant No, 22-C who filed written-statement on his behalf but without passing any order for his removal Mst. Jannat Bibi started acting as her guardian ad-litem being her mother which is not permissible under the law. There is nothing on the record that Mst. Jannat Bibi was allowed to act as guardian ad-litem of defendant No, 22-C whereas the only notable fact is that after a particular date as mentionedabove the presence of Reader of the Court has not been recorded specifically on behalf of defendant No, 22-C as her guardian ad-litem. It can safely be presumed that he continued to be the guardian ad-litem of defendant No, 22-C and if he was liable to be removed as argued by learned counsel for the defendants for his negligence for not having looked after the interests of the said minor properly, it was for the defendants to show that prejudice was caused. Mst. Jannat Bibi who himself was one of the defendants is also real mother of defendant. No, 22-C and defendants Nos. 22, 22-A, 22-B who are brothers and sister of defendant No,22-C defended the suit and their interest being common, it cannot be said that the interest of defendant No,22-C was not properly watched. The requirement of filing the affidavit in support of the application under Order 32, C.P.C. Was directory and not mandatory which did not adversely effect the maintainability of the said application and the legal efficacy of the order passed by the Court for appointment of guardian ad-litem.
8. Learned counsel for the defendants then argued that no list of other relatives was filed alongwith the said application under Order 32, C.P.C. By the plaintiff as required under the amendment made by the Lahore High Court in Order 32, Rule 3, C.P.C. Therefore, the very appointment of the fathers of the minor defendants in the absence of such a list was invalid.
9. I am afraid, the argument is plainly unsound. The requirement of submission of the list of other relatives is directory and not a mandatory one. Such a list is required only where the Court has to determine as to who out of the various relatives of the minor is the fittest person to be appointed as guardian who could watch his interest in a most proper manner. This eventuality could arise only if there was any dispute among the relatives of minor on this question. In this case the fathers of the minors defendants Nos. 35 to 37 and Mst. Jewan Mai mother of minor defendants Nos. 28-B and 28-C and Ghulam Rasool minor defendant No, 16 namely Muhammad Ramzan were appointed as their guardian ad-litem after recording their statements to which they did not object.
No ground was raised in the memo of appeal nor the same was argued before me that as against these persons the other relatives of the minors were better persons to look after the interests of minors or that they suffered any disability to act as their guardian ad-litem on account of their interest being adverse to the interest of minors in the suit. The learned lower appellate Court has taken too technical view of the matter in passing the impugned order without applying his judicial mind as to whether any prejudice was in fact caused to the minors in the matter of their defence in the suit. The impugned order has been passed mechnically on the erroneous assumption that all the proceedings before the appointment of guardian ad-litem and thereafter were vitiated. The learned lower appellate Court on this erroneous assumption failed to exercise jurisdiction vested in it under the law for deciding the appeal on merits as in view of my finding the legality of the proceedings were not in any manne1 affected as no prejudice had in fact been caused to the minor defendants as their interests had throughout been watched properly by those who were their natural guardians and an order for their appointment as guardian ad-litem was merely a formality. They also did not raise any objection and claimed retrial after they were appointed as guar danced litem.
10. Learned counsel for the respondents referred to various rulings of the superior Courts wherein it was held that the proceedings in the suit were vitiated for failure of the Court to appoint guardian ad-litem of the minors. The facts of those cases are distinguishable inasmuch as in those cases throughout the proceedings no one was appointed as guardian ad-litem of the minors and it was held that their interests were not properly watched. In the present case as I have observed above, the minors were properly represented at all material stages of the suit. In the present case those persons were ultimately appointed as guardian ad-litem who prior thereto had been looking after the interests of minors therefore, it is not a case where minors went unrepresented at any stage of the suit or no appointment was made of their guardian ad-litem.
11. For the foregoing reasons, this revision petition is accepted. The impugned order dated 10-4- 1988 passed by learned lower appellate Court is set aside and the case is remanded to the learned lower appellate Court for disposal of appeal on merits. The parties are left to bear their own costs.
12. Vide order dated 6-6-1989, the petitioner was allowed to withdraw the decretal amount with permission to re-deposit the same in case of her success. The petitioner is allowed to deposit the decretal amount within two months i.e,, on or before 7-6-1991.