' This case was disposed of by me vide my order, dated 9-3-1992, and the appeal filed by the landlady was allowed and the order passed by the Rent Controller, dated 25-11-1989, was set side and as a consequence thereof, the respondents were directed to hand over possession of the demised premises to the appellant. However, the order was passed in absence of the learned counsel for the respondents, as none had appeared on behalf of the respondents on 9-3-1992, when the case was called for hearing. The judgment passed by me indicates that after waiting for the learned counsel for the respondents for nearly the whole day, the judgment was passed after hearing only the learned counsel for the appellant. Thereafter, an application (C.M.A. No, 331/92) was filed on behalf of the respondents, requesting for recall of the earlier order passed by me in the case and hearing of the case afresh. On 17-5-1992, this application was granted by consent and the appeal was ordered to be posted for rehearing. Now, I have heard both the learned counsel appearing for the respective parties.
2. In short, the case of the appellant before the Rent Controller was that, the premises in question which were in possession of the respondents as tenants, were in good faith required by the appellant for her own use and that of her sister, Mst. Shamima Sattar. According to the appellant, she and her sister were residing with the former's mother-in-law alongwith her other members of the family. The family consisted of twenty-two persons which also included children. The appellant was employed with Pakistan Agricultural Research Council, which had its office at Malir Halt, Karachi, and as the appellant was a diabetic and a victim of hypertension and was also suffering from heart ailment, it was difficult for her to perform journey from Nazimabad, where she was staying at the time of the institution of the ejectment proceedings. Furthermore, the appellant's son who was then aged twelve years, was a student of Gulshen-c-Shah Abdul Latif Bhatai School and he also had to travel all the way from Nazimabad to the said school. The mother-in-law of the appellant also did not like her sister who was residing with the appellant in the same house.
Besides that, the appellant's sister was working as Assistant Director, Allama lqbal Library, K.M.C.
Which was situated near Guru Mandir, Karachi. Consequently, if the demised premises were vacated by the respondents, the same would be nearer to the place of her sister's employment as well as the school where the appellant's son was studying.
3. The application filed by the appellant was dismissed by the Rent Controller mainly on the ground that there was no relationship of the landlord and the tenant between the parties as notice under section 18 of the Sindh Rented Premises Ordinance, 1979 had not been given by the appellant to the respondents and Mst. Shamima Sattar the sister of the appellant who was the co-owner of the premises and for whose benefit the premises were also required, had not been made a party to the ejectment proceedings. The learned Controller also found contradictions in the appellant's as well as her sister's evidence and consequently finding the case weak even on merits, the eviction application was dismissed.
4. The appeal was, however, allowed by me vide the said judgment as none of the grounds upon which the application was dismissed could be sustained under the law.
5. The contention raised by Mr. Muhammad Sharif, learned counsel for the respondents before me has been two-fold. It was firstly contended that the application was filed only by the appellant without making Mst. Shamima Sattar a party and secondly it was argued that, two of the respondents were admittedly minors, however, no order was passed by the learned Controller in respect of appointment of guardian ad-litcm for them. Consequently, the entire proceedings before the learned Controller were vitiated by such defect .
6. So far as the first contention raised by Mr. Muhammad Sharif is concerned, although Mst.
Shamima Sattar was not a party to the ejectment proceedings but there was no controversy in regard to the fact that she was a co-owner of the property. The appellant besides filing her own affidavit-inevidence before the learned Controller also examined Mst. Shamima Sattar as a witness in the case. Although section 15(2)(vii) of the Rented Premises Ordinance indicates that an application seeking ejectment of a tenant on the ground of personal use can be filed by the landlord in case the premises are required in good faith for his own occupation or use for the occupation or use A of his spouse or any of his children, but admittedly, Mst. Shamima Sattar was residing with the appellant. It has been held in a number of cases that personal use of the landlord would include the use of the premises by all such persons who are dependent on or residing with him. Although, Mst. Shamima Sattar being a co-owner of the premises was also entitled to the use of the premises as owner thereof, but even if this highly technical objection raised by Mr. Muhammad Sharif is accepted, the use of the appellant would include the use of the premises by Mst. Shamima Sattar as well, as just pointed out. I, therefore, find no force in the first contention of Mr. Muhammad Sharif.
7. So far as the second contention of Mr. Muhammad Sharif is concerned, Order 32, Rule 3, C.P Code provides as follows:- "3. Guardian for the suit to be appointed by the Court for minor defendant.--(1) Where the defendant is a minor, the Court on being satisfied of the fact of his minority, shall appoint proper person to be guardian for the suit for such minor.
(2) 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.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
(4) 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 an 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.
(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continues as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree."
' Referring to Rule 3 Mr. Muhammad Sharif, has argued that although the provisions of Order 32, Rule 3 have not been expressly made applicable to rent cases, nevertheless, the proceedings before the Rent Controller being of civil nature, the same would nevertheless be governed by the said provisions. The learned counsel has further argued that the flaw left in the proceedings by failure of the learned Controller to appoint guardian ad-litem for the two minors in this case, has rendered the entire proceedings before him as non est. Reliance has been placed by the learned counsel upon Mashal Khan v. Fazal Khan (PLD 1963 (W.P.) Pesh. 93), Ghulam Hussain and others v.
Ghaus Bakhsh (1968 SCM R 991), Mst. Jan Bibi v. Zam Khan (1990 CLC 1858) and Muhammad Ismail v. Muhammad Sarwar (1980 SCM R 254).
8. The question as to applicability of the procedural provisions contained in the Code of Civil Procedure was examined by the Supreme Court in the case of Yusuf v. Mst. Rabia (1985 SCM R 1066), the question being whether the procedure contained in the C.P.C. Governed the hearing of an appeal filed under the Sindh Rented Premises Ordinance, 1979. The Supreme Court while answering the question in the affirmative observed:-- "There is nothing, in our opinion, in the language of section 21 to exclude the application of the ordinary procedure attaching to the High Court in hearing and disposal of civil appeals."
9. Although there is no controversy on the point that the provisions of Order 32, Rule 3, C.P.C. Are applicable to proceedings before the Rent Controller, but Mr. Z.U. Ahmed, learned counsel for the appellant has however contended that, procedural law is meant for facilitating justice and mere technicalities of procedure should not be allowed to defeat the ends of justice. Reliance has been placed by him upon Farhat Abbas v. Muhammad Shah 1981 CLC 188 where such observations were made.
10. Although, there can be no cavil with the proposition that provisions of Order 32, rule 3, C.P.C. Are imperative in nature and duty is cast upon the Court to appoint guardian ad-litem in case where suit has been filed against a minor, but the basic question that requires consideration is whether any defect in the Court proceedings resulting from omission to appoint any person as guardian ad-litem for minor-defendant would be fatal for such proceedings. Rules 1 and 2 of Order 32 which relate to appointment of next friend are different from Rule 3, because where the plaintiff is a minor, a suit can be filed on his behalf by a next friend who constitutes himself as such. For such appointment no prior order of the Court would be necessary. However, the provisions of Rule 3 are different from those of Rules 1 and 2 inasmuch as an application for appointment of guardian ad- litem is made after a suit has been filed against a minor-defendant and such guardian is appointed by an order of the Court. The question as to the effect of non-compliance with the provision of Rule 3 was considered by Anwarul Haq, J. In the case of Mashal Khan v. Fazal Karim reference to which has earlier been made in this judgment. The observations made by his Lordship which appear at page 101 of the report, are as under:-- "24. It will be seen that the consensus of judicial authorities appears to be that/the provisions of Order XXXII, R.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 interests were duly represented by irregularly appointed guardian ad-litem or by some other defendants who had identical interest with the minor in the matters in controversy in the suit. But if it is found that the minor has been prejudiced, then it must be held that he was not duly represented in the proceedings, and accordingly he cannot be regarded as a party to them, with the result that any order or decree passed therein would not be binding on him. Such a decree or order would be a nullity in the eye of law, as having been passed without jurisdiction against a person who was not a party before the Court."
' Reference was also made to the said provisions in the other cases relied upon by Mr. Muhammad Sharif, but none of them directly touches upon the question under consideration. However, in view of the observations made by Anwarul Haq, J. In the above case, with which I respectfully agree the only question that now requires to be determined in the present case is whether any prejudice was caused to the said minors by non-compliance with the provisions of Order 32, Rule 3, C.P.C. By the learned Controller. The record of the case indicates that no separate Vakalatnama was filed on behalf of the minors, Kashif Aminuddin and Mst. Wajecha, and the case on behalf of the said minors was defended by the rest of the respondents alongwith their own case. The other respondents in the case were the mother, the brother and the sisters of the said minoRs, There is nothing to indicate that the interest of the minors was not properly looked after by the other respondents whose interest in fact was common with that of the minoRs, Consequently, omission in the present case to comply with the provisions of Rule 3 of Order 32 does not appear to have adversely affected the interest of the minoRs, As has been pointed out by Mr. Z.U. Ahmed, under such circumstances, mere technicalities of procedure should not be allowed to defeat the ends of justice. Although I fully agree with Mr. Muhammad Sharif that any failure to comply with the provisions of Rule 3 of Order 32, C.P.C. In the ordinary circumstances would result in rendering the proceedings null and void but, in my opinion, for the reasons just enumerated by me, no prejudice has been caused to the minors by such non-compliance.
11. There being no other issue raised by Mr. Muhammad Sharif in the present case, in view of my above findings, I find no reason to depart from the view already taken by me in respect of the merits of the case which have already been discussed in details in my judgment, dated 9-3-1992.
For the aforesaid reasons, the judgment earlier passed by me is re-confirmed.