' SABIHUDDIN AHMED, J.---This appeal is directed against a judgment and decree of a learned Single Judge of this Court exercising original jurisdiction, decreeing the suit of respondents Nos.1 and 2 for specific performance of a contract for sale of immovable property and cancellation of a sale-deed in favour of the appellant and the respondent No,13.
2. The property which is the subject-matter of this dispute was admittedly owned by one Muhammad Gulzar and one Haji Muhammad Ishaque to the extent of 50% share each. After the demise of Haji Muhammad Ishaque his share devolved on his legal representative i,e, respondents Nos.3 to 9. Muhammad Gulzar apparently died leaving the pendency of the suit and the respondents Nos.10 to 12 are his legal representatives. The respondents Nos.1 and 2 filed a suit in 1978 contending that Muhammad Gulzar and the respondents Nos.3 to 9 had jointly agreed to sell the entire property to the respondents Nos.1 and 2 for a total consideration of Rs,5,50,000 vide an agreement dated 1-6-1976. A sum of Rs,10,000 through two separate cheques was paid to the vendors and it was stipulated that the balance sale consideration would be paid at the time of execution of the sale-deed within six months from the date of the agreement. In part performance of the agreement delivery of possession was made in the sense that existing tenants were required to attorn the buyer. It may be pertinent to mention here that the major part of the property was already in possession of a firm of which the respondents Nos.1 and 2 were partners.
3. According to the respondents Nos.1 and 2/plaintiffs, they came to know that the respondents Nos.3 to 12 were surreptitiously trying to dispose of the property to some other party, whereupon they caused a public notice to be published in the Daily "Sun" of 19th June, 1977, warning the public not to enter into any transaction with respect of the said property. However, on 5-2-1978 their firm Vieni Brothers, which was a tenant of the respondents Nos.3 to 12, received a notice from the appellant, calling upon them to pay rent to the appellant as the new purchaser of the property. It was subsequently found that through conveyance deed dated 23-6-1977 Muhammad Gulzar (predecessor of respondents Nos.10 to 12) had transferred his 50% share in the property in favour of the appellant and through another deed the respondents Nos.3 to 9 had transferred their share constituting the remaining 50% of the property to the respondent No,13. It may be pertinent to mention that the respondent No,13 is a brother of the appellant and the deed was executed through his father and natural guardian Mahboob Ellahi. Thereafter, the respondents Nos.1 and 2 filed a suit for specific performance of the agreement dated 1-6-1976 and cancellation of the two conveyance deeds dated 23-6-1977 and 11-10-1977.
4. A written statement was filed on behalf of the sellers (respondents Nos.3 to 9) and predecessor of respondents Nos.10 to 12, wherein it was alleged that the predecessor of respondents Nos.10 to 12 had executed an agreement of sale of his 50% interest of the property in favour of the appellant for an amount of Rs,2,75,000 with vacant possession within a period of 8 months of the agreement. At the same time it was stipulated that in the event of inability of seller to deliver vacant possession a sale-deed would be executed for a total consideration of Rs,55,000. It was further alleged that a similar agreement was made between the respondents Nos.3 to 9 in favour of the respondent No,13 and Rs,30,000 each was received by way of part payment from the appellant and the respondent No,13 (who are brothers inter se) by the respective owners. With respect to the agreement of sale in favour of the respondents Nos.1 and .2 it was pleaded that the owners had run into to some financial difficulty with the threat of being arrested and the said respondent/plaintiff agreed to provide them an amount of Rs,2,50,000, but insisted that a sale agreement should be executed. It was under these circumstances that the sale agreement was executed and Rs,10,000 was received by way of part payment. It was further alleged that the respondents Nos.1 and 2 did not keep their promise and as a result the parties resiled from agreement and it was agreed that the amount of Rs,10,000 would either be returned or adjusted against future rent. It was further averred that the terms of the agreements with the appellant and the respondent No,3 were reiterated by subsequent agreements dated 2-12-1996 and 8-8-1977 respectively and thereafter the respective conveyances were executed. A joint written statement was also filed by the appellant and the respondent No,13, wherein the existence of the agreement with the respondents Nos.1 and 2 was denied.
5. A number of issues were settled and the parties were allowed to lead evidence. The respondent No,1 appeared as the plaintiff No,1, made an oral deposition and produced a number of documents.
On behalf of the defendants, however, only the appellant (who was the defendant No,9) entered the witness-box and no evidence was led on behalf of the sellers i,e,, the respondents Nos.3 to 9.
6. The learned Single Judge found the agreement dated 1-6-1976 between the sellers and the respondents Nos.1 and 2 proved (Issue No,1) because the parties thereto were not at issue regarding its existence and obviously the appellant and the respondent No,13 could at best only claim absence of knowledge of the same. He also found that delivery of possession had been effected in favour of the respondents Nos.1 and 2 (Issue No,2) by way of party performance through attornment of tenants to the new buyer. As to Issues Nos.3 and 4, the learned Single Judge after an elaborate analysis of the evidence recorded a finding to the effect that the transaction between the respondents Nos.3 to 12 on the one hand and the respondent No,13 on the other was collusive and mala fide, intended to defeat the rights of the respondents Nos.1 and 2 and, therefore, of no legal effect. Accordingly, the conveyance deed in favour of the appellant and the respondent No,13 were cancelled and the suit of the respondents Nos.1 and 2 for specific performance of the agreement dated 1-6-1976 was decreed.
7. Questioning the findings of the learned Single Judge on the issue of existence of the agreement dated 1-6-1976, Mr. Fazal-e-Ghani Khan pointed out that a finding in the affirmative has been recorded with a mere observation that there was no dispute between the respondents Nos.1 and 2 and the sellers on this question. Learned counsel argued that the appellant and the respondent No,13 had, in their joint written statement expressly denied the existence of such an agreement, and therefore, it was incumbent upon the learned Single Judge to take into consideration all the relevant materials and record a definite finding. He pointed out that a concession made by the sellers should not have been allowed to prejudice the interest of the appellant particularly when the seller could be satisfied with the decree enabling him to recover an amount over and above the sale price.
8. Indeed the learned counsel may be technically correct that when one of the parties to the suit denies the existence of a document, a Court is generally required to record a specific finding on this issue. However, with profound respects the plea is of little material value in the circumstances of the case when the appellant and the respondent No,13 were in no position to say whether the respondents Nos.1 and 2 on the one hand and the respondents Nos.3 to 9 on the other had actually entered into the agreement. Nevertheless, Mr. Fazal-e-Ghani Khan emphasized that all the surrounding circumstances had to be looked into and it was evident from the record that neither of the parties had taken any measures to give effect to the same within the agreed time and laid great emphasis on the fact that it was only on 12-6-1997 that the respondents Nos.3 and 4 caused a public notice to be issued and that too in a obscure newspaper like the "daily Sun".
9. Mr. Mushtaque Ahmed Memon learned counsel for the respondents Nos.1 and 2 argued in reply that time could never be treated as of the essence in contracts for sale of immovable property and indeed Mr. Fazal-e-Ghani was not able to dispute this proposition. Moreover, he stated that "Sun" was not such an obscure newspaper in 1977 and was widely circulated during those years.
However, we are of the view that this question could only have a limited relevance if the appellant's case rested upon the doctrine, of bona fide purchaser for valuable consideration without notice of a previous contract in terms of section 27(b) of the Specific Relief Act. In this context Mr. Mushtaque Ahmed Memon referred to the pronouncement of the Honourable Supreme Court in Khairun Nisa v.
Malik Muhammad Ishaque (PLD 1972 SC 25), wherein it was held that section 27(b) is an exception to the general rule and heavy burden lay upon a person claiming to be such purchaser by affirmatively establishing his case. Mr. Fazal-e-Ghani indeed contended that the appellant's case was not founded upon this doctrine, but upon a prior equity existing in his favour in terms of the agreement dated 21-7-1975.
10. Mr. Iqbal Kazi on the other hand objected to the findings on another ground, contending that the agreement had not been proved in accordance with requirements of Article 78 of the Qanun-e- Shahadat Order, which stipulates that when a document is alleged to have been signed by a person, his signatures must be proved. Learned counsel argued that the respondent did not state that he had signed the agreement dated 1-6-1976. He relied upon the observations of the Honourable Supreme Court in Muhammad Yousuf Khatak v. S.M. Ayoob (PLD 1973 SC 160) where a particular document alleged to be signed by the appellant was tendered in evidence by the respondent to prove that the appellant was holding a particular office on a particular date which could have disqualified him from contesting National Assembly Elections. The appellant alleged that the document was fabricated and it was in this context that their Lordships held that in the absence of any proof as to the signatures of the appellant, the document could not be exhibited in evidence. In the present case, however, there was no allegation that the agreement was not signed by the respondent No,1 and in fact the execution thereof was admitted by the other party to the agreement. The appellant entered the witness-box and stated that he had entered into the agreement for purchase of the property and though he was duly cross-examined. No questions as to the existence of his signatures were raised. In the circumstances, we are clearly of the view that the principles laid down by the Honourable Supreme Court are inapplicable: Mr. Kazi's assertion that the respondent No,1 should have categorically asserted that the document bore his signaturtes is too technical to be given any serious importance. We, therefore, uphold the finding of the learned Single Judge on this issue.
11. As to the question of delivery of possession by way of attornment of the tenants to respondents Nos.1 and 2 Mr. Fazal-e-Ghani Khan was able to question the findings of the learned Single Judge on relatively more substantial grounds. As mentioned above one of the tenants in occupation of the property was a firm of which the respondents Nos.1 and 2 themselves were partners. There were two other tenants namely Kamokey Rice Syndicate and N.J. Haneef & Company and the dOcuments on record show that both these tenants were required to attorn to the respondents Nos.1 and 2 as late as on 21-2-1978 i,e, after sale-deeds in favour of the appellant and the respondent No,13 had been executed and these tenants were called upon to attorn to the new buyers. Though the letters on behalf of the respondents Nos.1 and 2 do state that these tenants were asked to attorn to them earlier, but no copy of document in writing required by section 13-A of the Rent Restriction Ordinance, 1959 (which was at the time) has been placed on record. Moreover, both these tenants in reply to the notice/letters from the respondents Nos.1 and 2 have categorically asserted that they were never apprised of the transfer of ownership and they had already started paying rent to the appellant and the respondent No,13 upon being apprised of the factum of purchase of the property through a registered instrument. In these circumstances with profound respects to the learned Single Judge, we are unable to sustain the findings that delivery of possession to the respondents Nos. 1 and 2 had been effected by way of part performance of the agreement dated 1- 6-1976. Nevertheless, despite of our above findings, we are of the view that the same would be of little material value inasmuch as the equity of specific performance existing in favour of the respondents Nos.1 and 2 by virtue of an agreement in writing dated 1-6-1976 could be enforced independently subject to the proof of a prior equity in favour of the appellant and the respondent No,13.
12. We may now come to the crucial question as to the genuineness of the alleged agreements dated 21-7-1975 and 11-10-1975 in favour of the appellant and the respondent No,13 respectively.
Both these "agreements" purportedly executed by the respondents Nos.10 to 12 and the respondents Nos.3 to 9 seem to contain identical terms. They stipulate that while the total sale consideration would be Rs,5,50,000 in case the property is delivered with vacant possession, the consideration will be reduced to merely 20% of the agreed amount if the owner is unable to deliver vacant possession within a period of 6 months. Surprisingly, however, the terms of these agreements have been reproduced in subsequent agreements dated 2-12-1976 in favour of the appellant and 13-3-1977 in favour of the respondent No,13 i,e,, after the sellers had entered into an agreement of sale with the respondents Nos.1 and 2. The explanation furnished for the two subsequent agreements was that since the sellers were unable to deliver vacant possession, the terms of the agreement had to be revised. This explanation is altogether untenable inasmuch as the original so-called agreements themselves provided for such a contingency, it is evident that sellers executed the so-called agreements dated 2-12-1976 and 11-3-1977 with full knowledge of the fact that they had entered into an agreement, with the respondents Nos.1 and 2 on 1-6-1976.
Apparently, the only way to defeat the rights of the respondents Nos.1 and 2 was to show some kind of a prior equity in favour of the appellant and the respondent No,13. In these circumstances, there was a heavy burden cast upon the appellant to prove the genuineness of the so-called earlier agreements.
13. Conveniently, the sellers though arrayed as defendants in the suit and having tiled written statement did not enter the witness-box. Mr. Fazal-e-Ghani Khan pointed out that on 17-4-1984, the respondent No,3 was ordered to be summoned as a witness for the respondents Nos.1 and 2 (plaintiffs), but subsequently, the matter was not pursued further. Mr. Mushtaque Ahmed Memon, however, explained that the request was granted when the suit had been ordered to proceed ex parte against the sellers, but since such order had been set aside and their written statement was taken on record, his clients legitimately expected that evidence would be adduced on behalf of those defendants. In any event as observed by the learned Single Judge neither the attesting witnesses nor the Advocate, nor the Notary Public before whom the two agreements of 1975 were said to have been executed were called upon to give evidence by the appellant and the respondent No,13. Even the father of these two gentlemen who defended the suit as a guardian of the respondent No,13 and through whom the entire transaction was admitted to have been effected did not enter the witness-box. Only the appellant himself gave evidence who at the relevant time was about 18 years old. Another interesting feature to which Mr. Mushtaque Memon has drawn our attention is that all the four agreements i,e, those dated 2-12-1976 and 18-8-1977 as well as the so-called earlier agreements dated 21-7-1975 and 11-10-1975 though purported to have been executed on different dates appear to have been witnessed by one and the same person i,e, one Muhammad Shafi a resident of Nazimabad which is at a substantial distance from the places where the parties resided or where property was located. In view of the above, we find the conclusions of the learned Single Judge to the effect that earlier agreements were collusive and fraudulent are unexceptionable.
14. Mr. Iqbal Kazi learned counsel for respondent No,13, however, towards end of his address raised an important question of law. He argued that at the time of filing of the suit, the respondent No,13 was admittedly a minor and was sued through his father and natural guardian. Nevertheless, no guardian ad litem for the appellant was appointed in terms of the requirements. Of Order 32, rule 3, C.P.C. Learned counsel emphatically argued that the provisions of the Rule were mandatory and no decree passed in the absence of a duly appointed guardian was a nullity in law. He cited the pronouncements of the Supreme Court of India in Ram Chandra, Arya v. Man Singh and another (AIR 1968 SC 954) and our Supreme Court in Ghulam Hussain and others v. Ghous Bakhsh and others (1968 SCMR 991). In the Indian case it was held that decrees against a minor without the appointment of a guardian ad litem under rule 3 and against a lunatic under rule 15 were nullities and hence not executable and fully supports learned counsel's assertion. However, the facts and the legal proposition laid down in Ghulam Hussain's case need closer examination. The respondent No,!, had filed a suit against the respondents Nos.2 to 8 as well as the appellants for possession by pre-emption of certain lands. The factum of minority of the appellants, however, was not disclosed and the suit proceeded ex parte against them till it was compromised as between the respondent No,1 and the respondents Nos.4 to 8. When the respondent No,1 applied for execution of the ex parte decree, the appellants objected contending that the decree had been obtained without appointment of a guardian ad litem. The respondent No,1 conceded the objection and applied to the trial Court for de novo trial of the suit. The application was opposed by the appellants on the ground that having deliberately suppressed the facts as to appellants' minority he was not entitled to seek revival of the suit. The objections were overruled by the trial Court against which the appellants moved an application contending that: the executing Court acted with material irregularity in filing execution proceedings and directing, therefore, trial of the suit without framing an issue as to whether factum of the appellants' minority was within the knowledge of the respondent No,1 and that the decree being the nullity as against the minors, the trial Court had no jurisdiction to restore the suit. The contentions were repelled by the High Court and the Honourable Supreme Court held as under:-- "It is the case of the appellants that the ex parte decree passed against them without the appointment of a guardian ad litem was a nullity and, therefore, not executable under law. In other words the decree was non est and no order for setting it aside was required. A fortiorari the suit instituted by the respondent No,1 was undisposed of and it was the duty of the Court to try it in accordance with law. In the alternative if the decree was not a nullity and it was necessary to have it set aside by a suit as maintained by the learned counsel for the appellants then the executing Court should have proceeded to execute the decree and deliver possession to the respondent No,1 leaving the appellants to file a suit which undoubtedly would have been detrimental to their interest."
15. A careful reading of the above indicates that the Honourable Supreme Court did not authoritatively pronounce that a decree without the appointment of a guardian ad litem was an absolute nullity and unexecutable. In our humble view their Lordships only referred to the contention of the appellants and observed that if the proposition advanced was correct, the obvious conclusion would be that the suit will have to be treated as pending and no objection could be taken to the order of the trial Court reviving the same. At the same time, it was observed that alternatively if the decree had to be treated as merely voidable, no objection to its execution could be taken unless it was set aside through a separate suit. Therefore, the above judgment does not in our view proceed to advance Mr. Kazi's contention.
16. On the other hand Mr. Mushtaque Ahmed Memon learned counsel for respondents Nos.1 and 2 relied upon a more recer pronouncement of the Honourable Supreme Court in Muhammad Shard and another v. Nadim Shahid and others (1988 SCMR 804). In this case the petitioners who wet minors had purchased the land in dispute through their grandfather and the respondents had filed the suit for the pre-emption seeing them through the same person. No formal order of appointment of guardian was passed under Order 32, rule 3, C.P.C. But the entire litigation on behalf of the minors was pursued through their grandfather. It was argued before the Honourable Supreme Court that all the proceedings before the Court below were illegal in the absence of the appointment of a guardian ad litem. Their Lordships, however, took the view that since the grandfather did not have an interest adverse to the minors and had not been remiss in the representing their interests during the entire course of litigation, the question of failure of the trial Court to make a formal order of his appointment as guardian was merely of a technical nature and leave to appeal was, therefore, refused.
17. Our attention has also been drawn to a comparatively recent decision of the Honourable Supreme Court in Taj Din and another v. Mehr Mai and others (1997 SCMR 134). In this case a suit had been filed by the respondents against the petitioner No,2 who was a minor at the relevant time without an application for appointment of his guardian ad litem. In the written statement tiled on behalf of the appellant No,2 was specifically raised, but no application for appointment of a guardian ad litem was made till 23-2-1983. When such application was actually made it was objected to on the ground of having become barred by limitation. Their Lordships held that such an application could not be treated as one for adding a new party as the minor was already arrayed before the Court though no guardian ad litem had been to look after his interests. Moreover, it was the duty of the Court to appoint such guardian and the defect could always be rectified at any time before a final decision was taken.
18. Mr. Mushaque Ahmed Memon also referred to some judgments of the High Courts in Pakistan of which two appear to be in Mashal Khan v. Fazal Karim (PLD 1963 Peshawar 93), Anwarul Haq, J, after surveying a chain of pronouncements of different High Courts in pre partition India recorded the following conclusion: "It will be seen that the consensus of judicial authorities appears to be that the provisions of Order XXXII, rule 3., C.P.C., regarding the representation of minor litigations, 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 the 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."
19. In Aijaz Ahmed Khan v. Shoukat All (1989 MLD 2218), the respondent had filed a pre-emption suit against the petitioners, and though the petitioners Nos.2 and 3 were minor at that time no order for appointment of their guardian ad litem was made. The suit was decreed and an appeal against the judgment and decree having been dismissed. The petitioners approached the High Court in revision. It was inter alia urged that the petitioners Nos, 2 and 3 were minors and as such the suit was incompetent. Repelling the contentions, ;Malik Muhammad Qayyum, J., observed as under:-- "In any caw, the interest of the petitioners was common with Ijaz Ahmed Khan 'petitioner No,1 who was major and was the real brother and co-vendee of the petitioners. He has been actively participating in the proceedings. Although there is no irregularity pointed out by the learned counsel yet even if there be some, no prejudice appears to have been caused to the petitioners Nos.2 and 3 and, therefore, the proceedings taken by the trial Court cannot be set at naught on a hypertechnical objection at this stage. The civil revision has no force and is dismissed leaving the parties to bear their own costs."
20. Mr. Memon then referred to a judgment of this Court in Anisa Begum and another v. Mrs. Aminuddin and others (1993 CLC 1999). In .An appeal against order under the Sindh Rented Premises Ordinance, it was urged on behalf of the respondents that two of them were minors at the time when the order was passed by the Rent Controller and no order for appointment of guardian ad litem having been passed all the proceedings before the Rent Controller were vitiated. Having found that the provisions of Order 32, rule 3, C.P.C. Were applicable to proceedings under the Rented Premises Ordinance and having observed that the provisions of Order 32, rule 3, C.P.C. Were imperative, Mamoon Kazi, J., went on to hold that since the other respondents in the case were the mother, brother and sisters of the minors having no adverse interest, omission to comply with the provisions of the aforesaid Rule could not vitiated the proceedings unless it could be shown that the same had adversely effected the interests of the minors. The Honourable Judge further went on to observe that technicalities of procedure should not be allowed to defeat the ends of justice.
21. From an examination of the above cases, it appears that the legal proposition laid down by the Honourable Supreme Court of India in Ram Chandra Aray's case (AIR 1968 SC 954) does not reflect the law operating in Pakistan. Recognizing that the duty to appoint a guardian ad litem is that of the Court itself and the rights of the parties should not be jeopardized on account of an omission to perform such duty, our Courts have taken a more pragmatic view. It has been held that if the failure of the Court to appoint the guardian ad litem has not caused any substantial miscarriage of justice or has not prejudiced his interest of the minor, such defect could be rectified at any stage or overlooked. We are therefore, of the view that it needs to be shown that omission to appoint the guardian ad litem had caused prejudice to the interests of the respondent No .13 .
22. It may now be seen whether the respondent No,13 could claim any prejudice to have been caused to him by the omission to make a formal order as to appointment of his guardian ad litem.
In the first place it may be observed that he was sued through his father who was his natural guardian and the guardian of his property under the Muslim Law. Secondly, his case was exactly on the same footings as that of the appellant who was his real brother. The father of the respondent No,13 also filed a written statement on his behalf. No doubt he did not enter the witness-box but this fact has equally affected the interest of his other son i,e,, the appellant. In any event we fail to see how the interests of the respondent No,13 could have been better protected if his father or any other person had been formally appointed as guardian ad litem. Nevertheless, to remove any apprehension of prejudice, we asked learned counsel as to whether the father of the respondent No,13 who carried out the entire transaction could be summoned for recording additional evidence.
However, we were informed that unfortunately he has also expired. In these circumstances, we are of the opinion that setting aside of the decree and remanding the matter to the trial Court would not serve any purpose and would only entail delay.
23. For the foregoing reasons, we are constrained to dismiss this appeal but there would be no order as to costs.