SAIDUZZAMAN SIDDIQUI, J.---Appellants and respondent No.8 in the above appeal jointly purchased 292 Kanals of land situated in Khata No.62, Village Jam Rid, Tehsil Layyah (hereinafter to be referred as 'the suit land') from one Mst. Jatto through a registered sale-deed dated 28-7-1979.
Respondents 1 to 7's predecessor, Mahmood deceased (hereinafter to be called as 'the pre- emptor') filed a civil suit claiming superior right of pre-emption on the suit land. The suit was resisted by the appellants and on the basis of controversies between the parties, the trial Court framed the following issues:-- "(1) Whether the plaintiff has superior right of pre-emption? OPP
(2) Whether the ostensible sale amount of Rs.40,000 was fixed in good faith or actually paid? OPD
(3) For non-proof of issue No.2 what was the market value of the suit land at the the of sale? OP Parties.
(4) Whether the suit has been wrongly valued for court-fee and jurisdiction? If so, its effect? OPD
(5) Whether the revenue papers have not been filed with the suit, if so, its effect? OPD
(6) Whether the defendant No.3 Muhammad Shafique was minor at the the of suit and the suit has been filed without his guardian ad litem? If so, its effect? OPD
(7) Whether the plaintiff has waived his right of pre-emption by his own conduct? OPD
(8) Whether the suit is the-barred? OPD
(9) Whether the defendants are entitled to get back the amount incurred by them on stamp papers, District Council fee and registration charges? OPD (9-A) Whether the suit is not maintainable in view of P.O. No. l? OPD.
(9-B) Whether the suit is within the? OPD.
(10) Relief."
2. The trial Court after recording evidence of the parties decreed the suit in favour of pre-emptor by judgment dated 18-3-1984. Against the judgment and decree of the trial Court, the appellants preferred an appeal which was accepted by the Additional District Judge, Layyah, on 16-6-1984 and case was remanded to the trial Court for a fresh decision on Issues Nos.4 and 5 in the suit. The remand order passed by the first Appellate Court was set aside by a learned Single Judge of Lahore High Court in Civil Revision No.499 of 1984 preferred by the pre-emptor and the appeal was remitted to the first Appellate Court for a fresh decision in accordance with the law. After remand of the case Court, as aforesaid, the first Appellate Court dismissed the appeal filed by the appellants and upheld the judgment and decree of the trial Court dated 18-3-1984. The appellants challenged the judgment and decree of first Appellate Court in Civil Revision No.528 of 1989 which was dismissed by the impugned judgment giving rise to the present appeal. Leave was granted by this Court to consider the following contentions of the appellants:-- "Petitioners seek leave to appeal against an order of a learned Judge of the Lahore High Court, Multan Bench, Multan in Civil Revision No.528 of 1989 dated 5-5-1992.
1. Relevant facts are that the petitioners purchased land through a registered sale-deed dated 28- 7-1979. The respondents filed a suit for pre-emption on 21-6-1980, but the petitioners who were then minors were not sued through guardian ad litem. The written statement was filed pointing out the fact of minority on 15-9-1980. Nonetheless, no application was made for appointment of guardian ad litem. An application was made on 28-3-1983 by which the the suit against the minor petitioners had become barred by the. The point was agitated but was overruled on the ground that whenever guardian ad litem is appointed it will revert back to the date of the institution of suit and question of limitation would not arise. However, the contention of the learned counsel for the petitioner is that may be so if the other side does not know of the minority and applies for appointment of guardian ad litem on acquiring knowledge. On the other hand, if the fact of minority is made known and the other side does not apply for appointment of guardian ad litem then by its own conduct the suit will be allowed to become barred by the.
2. To consider the contention, leave to appeal is granted. Interim order dated 24-6-1992 shall continue."
3. The learned counsel for the appellants in support of the appeal contended that the suit instituted by the respondents against Muhammad Shafiq (petitioner No.2) was a nullity as on the date of filing of the suit Muhammad Shafiq was a minor and no application was moved by the plaintiffs/respondents for appointment of his guardian ad litem in the suit. It is further contended that in the written statement filed on behalf of appellants in the suit on 15-9-1980 the objection regarding minority of Muhammad Shaifq was specifically pleaded and it was pointed out that no application for appointment of guardian ad litem of minor defendant in the suit was filed by the plaintiff, but in spite of this specific objection having been raised by the appellants, no steps were taken by the pre---empors to rectify this defect until 23-2-1983, when application for appointment of guardian ad litem of minor Muhammad Shafiq was filed. It is contended by the learned counsel for the appellants that on 23-2-1983 when the pre-emptor applied to the Court for appointment of guardian ad litem of Muhammad Shafiq the minor defendant in the suit, the suit against. Him had already become the---barred but the Courts below failed to take notice of this obvious defect in the proceedings. The learned counsel for pre-emptor on the other hand supported
4. It is an admitted position in the case that in the registered sale-deed of the suit land Muhammad Shafiq was not shown as the minor. However,- in the written statement which was filed by the appellants jointly in the suit, it was alleged that Muhammad Shafiq is a minor and written statement on his behalf was submitted through his guardian Muhammad Yameen. Rule 3, Order 32, C.P.C. Casts a duty on the Court to appoint guardian of the minor defendant in the suit after being satisfied of the fact of minority of the minor defendant, for the purposes of the suit. Such appointment can be made by the Court either on an application on behalf of minor or by the plaintiff. The purpose behind the appointment of a guardian ad litem of a minor defendant in the suit is to protect the interest of such minor in the proceedings and the duty for protection of interest of the minor defendant in the suit is cast on the Court and not on the parties to the suit. It is, therefore, quite clear that where a minor is already party in the suit although he is not represented through a duly appointed guardian ad litem by the Court, the defect can be cured by appointment of such guardian by the Court before the final decision of the case either on the application of any of the parties to the suit or by the Court at its own accord. In such a situation a suit against the minor who was already party in the suit though un-represented through duly appointed guardian ad litem by the Court, would not become the---barred for the reason that the Court had appointed guardian ad litem of the' minor defendant on a date when the limitation prescribed for filing of such suit had already expired. In a case of this nature the question of expiry of the limitation period would not arise as there is neither any addition nor substitution of new party in the suit. In the case of Muhammad Ismail etc. v. Muhammad Sarwar etc. (1980 SCM R 254), a similar contention raised before this Court in respect of a pre-emption suit was repelled as follows:-- "6. We have considered the plea raised but we must say that we are not in a position to endorse the same as it is not based on a correct appreciation of the relevant law on the subject. Before proceeding further we must, however, observe that in cases of presumption, of late it has become a growing tendency on the part of the vendees that in the sale-deed they deliberately, do not describe or disclose whether any vendee is a minor with an ulterior motive to entrap a pre-emptor expecting that he will normally repeat the same description of the vendees in the suit as is contained in the sale-deed. After the period of limitation has run out then the vendees would surprise the pre-emptor by taking up an objection that one or some of them were minors, and in this way plead that no amendment for correcting the description of the aforesaid minor or minors should be allowed at that late stage of the case. The Courts whose function is to do justice between the parties and to maintain the balance should not hesitate to come, to the rescue of a suitor who is so entrapped, if we can say due to the aforesaid contrivance of the vendees themselves who purchased land jointly with a minor without on their own part appointing his guardian etc. But rather kept that aspect of the matter, screened from all concerned.
7. After administering the above caution we may now refer to section 2 of the Limitation Act IX of 1908. It is headed as "effect of substituting or adding new plaintiff for defendant", and lays down that "(1) Where, after the institution of a suit a new plaintiff or defendant is substituted or added, the suit, shall, as regards him, be deemed to have been instituted when he was so made a party. (2)
Nothing in subsection (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff". As the language of the section clearly shows it applies to cases where a new defendant is substituted or added. Now if a person is already a defendant but his description as minor is not given, and is sought to be corrected later, he does not become a new party. There can be no doubt that a minor is not bound by any proceedings taken as against him where he is not properly represented and a guardian is not appointed of such minor, but the question for decision in this case is not whether the minor was or was not properly represented as it has always been held that he was not but the question is whether it should be held that there was no suit filed against him on 26-5-1975 because no guardian had been appointed of the minor. In every suit where the defendant is a minor the right of appointing his guardian is not given to the plaintiff but to the Court. The plaintiff can only suggest who should be appointed his guardian and it is for the Court on being satisfied of the fact of the defendant's minority, to appoint a proper person to be guardian for the suit for such minor, see Order XXXII, rule 3, C.P.C. It is, therefore, obvious that the question of appointment of a guardian, must come after the institution of the suit, but when a guardian is appointed the suit is not deemed to have been instituted against the minor on the date of such appointment but on the date when the suit was filed. If, before' such appointment is or can be made, the minor attains majority, the suit would not be deemed to be filed against him on the date when he attained majority, but on the original date when it was filed to Court. This shows that party to suit throughout would remain the minor and not the guardian ad litem. "
An earlier decision of this Court in the case of Ghulam Hussain and others v. Ghaus Bakhsh and others (1968 SCM R 991), was also referred in the case of Muhammad Ismail, supra, and after quoting relevant passage, the following observations were made:-- "The above passage shows as pointed out by us earlier that though the proceedings without getting a guardian of a minor defendant appointed may be illegal but the institution of the suit remains proper and that is not a nullity by itself because had that also been a nullity its revival could not have been maintained by this Court in the above-quoted passage. Similarly as observed a guardian ad litem himself never is and nor does he ever become a party to the suit merely because he is so appointed. The party remains the minor defendant and all that the law requires is under Order XXXII. R.3, C.P.C. The appointment of such a guardian is neither a substitution nor an addition of a new party at all, and as such the provisions of section 22, Limitation Act are not attracted to such a situation and at the most it may be a case of simple mis-discription of a defendant and is certainly not of his omission. It was argued by the learned counsel that by describing the minor defendant as a major, the defendants had acquired a vested right of which they could not have been deprived by allowing the plaintiff to amend the plaint or get his guardian ad litem appointed from the Court. The short answer is that the defendants in fact had acquired no right under the Limitation Act, because, as explained earlier the institution of the suit was quite competent and saved limitation and it was only further progress of the suit which depended upon the appointment of guardian ad litem by the Court and that to at a stage when the Court was satisfied that the defendant was a minor and deserved to be represented by a suit guardian. This as is obvious is a step subsequent to the institution of a suit, and the institution was not dependent upon first getting such a guardian appointed in advance for suing a minor, so as to make the institution as incompetent in the absence of the fulfilment of that condition precedent or without procuring of an order of the Court on these lines."
The above-quoted passages fully support the contention of the learned counsel for the respondents that by appointing guardian ad litem of minor defendant the defect it the proceedings of the suit on account of. Non---appointment of guardian ad litem in the suit, if any, stood cured and the decree passed by the Courts below did not suffer from any infirmity on account of the fact that at the the of filing of suit no application for appointment of guardian ad litem of the minor defendant in the suit was made to the Court. No case for interference with the judgment of High Court is made out. The appeal is, accordingly, dismissed. In the circumstances of the case, there will, however, be no order as costs.