' This first appeal by a plaintiff is directed against an order of remand passed by an Additional District Judge on 13-3-1989. In an appeal brought by the defendants against the trial Court's decree dated 27-7-1976 passed against them in a pre-emption suit relating to certain agricultural land sold in favour of Sher Muhammad and Ghulam Muhammad who were the two vendees arrayed in the suit as defendants, of whom the former died during the pendency of the suit and the present respondents Nos. 1-A to 1-E were impleaded as his legal-representatives on the basis of plaintiff's application dated 30-6-1972 wherein, after stating that his death had taken place on 17- 6-1972, list of his five heirs; a widow, two daughters, one daughter-in-law and one grandson Rashad, was provided for their names being brought on the record as his legal-representatives. On the same day notice was ordered thereon to be issued. Upon service whereof, reply to the application was submitted by the legal-representatives as bearing the date 5-9-1972 (Annexure 'B') with the only objection taken therein that, Mst.Jannat Bibi had been divorced by the deceased.
It was specifically stated that except for Mst.Jannat Bibi being a divorcee, there was no objection to the impleading of legal representatives. This reply is shown at its foot to have been signed by Mst.
Hameeda Begum (Mother of the minor), a daughter-in-law of the deceased; with two thumb- impressions appearing under the names of two daughters of the deceased and even the description of the minor grandson Rashad was specifically given as in the guardianship of his mother. Prayer for impleadment of legal representatives was allowed without a formal order passed for appointment of guardian for the minor and amended plaint was filed wherein Rashad was shown as sued through his mother Mst. Hameeda acting as his guardian and was, as such, proceeded to be tried to the last and ultimately decreed in favour of the plaintiff on the basis of trial Court's judgment dated 27-7-1976.
2. Defendants joined to thereagainst bring R.FA. No, 50 of 1976-BWP in this Court which came in due course to be transferred to the Court of District Judge, Bahawalnagar upon the increase of pecuniary-limits of appellate jurisdiction of the District Court. That appeal was drafted by Abdul Sattar Najam, Advocate and objection was for the first-time therein taken that the trial Court's decree is vitiated on account of minority of Rashad regarding whom there were no proceeding at all taken under Rule 3 of Order XXXII of the C.P.C. Wherefore that decree has to fall even as against the other defendants. Whereas such is the sum and substance of paragraphs Nos.5 and 6 of the memo of that appeal; it is mentioned in the very next (7th) paragraph that the minor is filing this appeal through his mother Mst.Hameeda who has no interest adverse to that of the minor, being her only son.
3. The appeal remitted as above, was heard by Mr-laved Iqbal Siddiqui, Additional District Judge, Bahawalnagar before whom cases reported as 1988 CLC 1355; 1986 SCMR 853; PLD 1983 Lah. 164; PLD 1975 Lah. 403 and PLD 1963 B.J. 30 were cited in support of the appeal which, however, was opposed by the plaintiff-respondent with reference to PLD 1961 Dacca 698. After hearing, the objection with regard to absence of formally appointed guardian for Rashad prevailed with the appellate Judge who observed that since notice issued to Rashad had not been personally served on him on account of his minority and this fact was clearly mentioned in the report made by the process-server, therefore, trial Court should either have been moved by the plaintiff for taking the required proceedings for appointment of a guardian for him or the Court ought to have itself appointed one and the omission to at all appoint anyone to act as such was not a mere irregularity but amounted to an illegality vitiating the proceedings taken eversince. Consequently, he accepted the appeal to set aside trial Court's decree by his judgment dated 13-3-1989 and proceeded to remand the suit for decision afresh from the point of time of the death of Sher Muhammad.
4. Plaintiff has now come up to this Court in this appeal against the thus passed order of remand.
5. Only one argument of formidable nature raised in support of this appeal is that the order of remand has been passed mechanically, without either going through the authorities cited at the Bar, mentioned in the impugned order or attending to all the facts (detailed above) which clearly manifest that interest of the minor was adequately and effectively represented by his mother, a natural guardian, with the implicit sanction of the trial Court so that the absence of a formal order on the point was a mere irregularity which could not have led to the trial Court's decree being reversed inasmuch as it was saved by the provisions of section 99 of the C.P.C.
6. None of the cases cited for the defendants in the appeal below is much in point and it seems that the appellate Judge did not even go through them. The first-mentioned case of 1988, which is from Karachi, is very brief, not containing any discussion of the law-point and has merely approved the contention raised by the counsel with regard to the decree being a nullity; the next case of the Supreme Court is not in point at all. It relates to abatement of suits and impleading of legal- representatives. There is no question of minority of a party or its representation dealt with in it.
Remaining three cases, two from Lahore and the one from Baghdad-ul-Jadid, have simply reaffirmed the general proposition that a decree passed against a minor without anyone representing his interest is a nullity. There is no cavil with this statement of law but the situtation here is different inasmuch as the minor Rashad had his interest in fact duly represented in the suit.
This feature of the case is not dealt with in any of the aforementioned reported cases which found favour with the appellate Judge below.
7. In the case in hand, not only the proceedings in the trial Court were actually carried on with Mst.
Hameeda (mother of the minor) cited as his guardian in addition to herself also being arrayed as one of the defendants but also the appeal below was in fact jointly maintained by all the defendants with her acting as such, of course, without any explicit order passed for her being so appointed and this omission, in such a situation, had to be regarded as only inconsequential because there was nothing to suggest that interest of the minor was not duly represented, and muchless has any prejudice been shown to be caused to the minor by the omission whereto section 99 of the C.P.C. Squarely got attracted.
' Reliance for the plaintiff was rightly placed in the appeal below on Syed Ahmad v. Prafulla Kumar De and others PLD 1961 Dacca 698 because therein it was concluded on the authority of Mst. Bibi Walian and others v. Banke Behari Pershad Singh and others 30 A.I. 182 that where notices are found issued and duly served upon the minor and proposed guardian but a formal order of appointment of guardian ad-litem is not made, the defect is a mere irregularity curable under section 99 of the C.P.C.
' It will also be worthwhile to herein reproduce relevant part of the aforecited judgment of the House of Lords. It was therein held as under:-- "Where it appears that in a suit the minor's interests were effectively represented by their mother with the sanction of the Court, the absence of the formal order appointing her and an immaterial defect of service of summons on the minors and their guardian, not shown to have caused any prejudice to them, are mere irregularities, which, under S.578 (now Section 99 of the present Code of Civil Procedure) would not be ground for reversing judgment and execution proceedings on appeal, or in a separate suit for that puropose."
' Another precedent directly in point is the case, Paran Munda and another v. Santosh Mahto and others AIR 1942 Patna 372 wherein is to be found as hereunder:-- "In the first appellate Court one of the respondents died and the minor sons were brought on the record as legal representatives under the guardianship of their mother who was their natural guardian. The proper steps for her appointment as guardian ad-litem were not observed. The guradian of the minors did not in fact appear, but all the adult respondents appeared in the Court.
There was no defence open to the minors other than that taken by the adult respondents; in the second appellate Court the minors appeared through a guardian ad-litem appointed by that Court, and denied that their interests were prejudiced by the non-appearance of their mother in the Court below: ' Held that since no prejudice had accrued to the minors the omission to adopt the procedure which should have been adopted for the appointment of a guardian ad-litem did not justify a reversal of the decree."
8 . In the present case it is not claimed that defence of the minor Rashad could possibly be any different from that of his other close relatives arrayed in the suit and it has not been indicated as to what difference would have been made with the passing of a formal order for the appointment of any guardian ad-litem. There is no prejudice shown to have resulted from the omission to formally appoint anyone as his guardian ad-litem inasmuch as his mother (a natural guardian) has all along represented him, upon an undoubtedly self-assumed responsibility which could not possibly have assumed any other shape in her being so designated through a formally passed order of the Court.
' Section 99 of the C.P.C. Provides as under: "99. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court."
9. In the aforementioned facts of the litigation and the above law, there really was not available any basis for the Additional District Judge to set aside the trial Court's decree and remand the suit.
10. Result of the foregoing is that the order dated 13-3-1989 passed in the appeal below is clearly not sustainable and the same is set aside upon accepting this appeal.
' In consequence, appeal of the defendants in the District Court will be considered as still pending at its original number, having to be decided afresh in accordance with law. Learned appellate Judge below will proceed to so decide that appeal. Costs hereof are left to be borne by the parties themselves.