1. ' MUHAMMAD NAWAZ ABBASI, J.---We propose to dispose of Civil Petition No,117 of 2002 and Civil Petition No,78 of 2002 filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, by this common judgment as both these petitions arise out of the same impugned judgment dated 31-8-2001 passed by a learned Division Bench of High Court of Sindh in H.C.A. No,39 of 1987 which was preferred against the judgment dated 1-3-1978 passed in a Civil Suit No,170 of 1978 of a learned Single Judge of said High Court in original jurisdiction.
2. ' The facts in small compass in the background giving rise to the above petitions are that property bearing Survey No,115, Street No,SR-3, measuring 681 sq. Yards situated at Ferere Road, Serai Quarters, Karachi was jointly owned in equal shares by Muhammad Gulzar and Haji Muhammad Ishaq. Upon death of Haji Muhammad Ishaq, 1/2 share in the property owned by him devolved on respondents 3 to 9 as his successors-ininterest. The respondents Nos.1 and 2 namely Haroon and Abdul Aziz sons of Haji Abdul Karim entered into an agreement of sale dated 1-7-1976 with Muhammad Gulzar and respondents Nos.3 to 9 being joint owners of the property for a consideration of Rs,5,50,000 out of which a sum of Rs,1,00,000 was paid to the vendors through chequue with a stiuplation in the agreement that balance price would be paid at the time of execution of sale deed within six months from the date of agreement. The property was in possession of tenants and respondents Nos.1 and 2 herein were also holding possession on a portion of property as tenants, therefore, the possession of the property was delivered through attornment. The execution of conveyance deed was delayed by the vendors and the respondents Nos. I and 2 in Civil Petition No,117 of 2002, having come to know that the owners of the property were in negotiations for the sale of property to the petitioners in the present petition, filed a suit for specific performance of the agreement dated 1-6-1976 and for cancellation of the conveyance deeds executed by owners of the property in favour of Hasan Mahboob petitioner in Civil Petition No,117 of 2002 and Tanvir Mahboob petitioner in Civil Petition No,78 of 2002. Pending disposal of the suit Muhammad Gulzar died and his legal heirs, respondents Nos.10 to 12 were impleaded as party.
3. ' The case of the petitioners in these petitions is that vide agreement dated 11-10-1975 respondents Nos.3 to 9 predecessor-in-interest of Haji Muhammad Ishaq agreed to sell their 50% share in the building in favour of Hasan Mahboob petitioner in Civil Petition No,117 of 2002 and respondent No,13 in Civil Petition No,78 of 2002 for consideration of Rs,2,75,000 through his father Mahboob Ellahi with the understanding to deliver the vacant possession and out of sale price an amount of Rs,70,000 was paid to them in advance. It was next pleaded that Muhammad Gulzar owner of remaining 50% share in the building also entered into an agreement dated 21-7-1975 with Tanvir Mahboob respondent No,13 in Civil Petition No, 117 of 2002 and petitioner in Civil Petition No,78 of 2002 for a consideration of Rs,2,75,000 out of which an amount of Rs,30,000 was paid in advance. The above agreements as per claim of the petitioners were renewed on 8-12-1977 and 2-12-1976 respectively and in affirmation thereof conveyance deeds were accordingly executed on 11-1-1977 and 26-3- 1977 to pass on the title. As per averments of the plaint, notices of attornment were also served upon the tenants without having the knowledge of agreement dated 1-6-1976 between the respondents Nos.1 and 2 and the owners of the building.
4. ' The learned Single Judge in the High Court of Sindh in the light of pleadings of the parties framed the following issues:-- "(1). Whether there is an agreement of sale dated 1-6-1976 between the defendants Nos.1 to 8 on the one hand and the plaintiffs on the other for the sale of the property in the suit?
5. (2). Whether the defendants Nos.1 to 8 delivered to the plaintiffs possession of the said property in part performance of the said agreement of sale?
6. (3). Whether the transaction between the defendants Nos.1 to 8 on the one hand and the defendants Nos.9 and 10 on the other was a collusive and mala fide transaction and was intended to defeat the rights of the plaintiffs over the said property?
7. (4). Whether the conveyance of the said property by the defendants Nos.1 to 8 in favour of the defendants Nos.9 and 10 was invalid in law and of no legal effect?
8. (5). Whether on the facts and the circumstances of the-case the plaintiffs are entitled to get the deed of conveyance in favour of the defendants Nos.9 and 10 cancelled?
9. (6). Whether the plaintiffs are entitled to the specific performance of the agreement of sale dated 1st June, 1976?
10. (7). Whether, in the alternative, the plaintiffs are entitled to damages amounting to Rs,5,50,000.00 and refund of part payment already made by them to the defendants Nos.1 to 8.?
11. ' What should the decree be?"
12. ' The parties led oral and documentary evidence in support of their respective claims and the learned trial Judge having diluted upon the controversial questions of facts and law decreed the suit for specific performance of agreement vide judgment dated 1-3-1987. The petitioner being aggrieved of the judgment and decree in the suit filed an appeal bearing No,39 of 1987 in the High Court of Sindh which was dismissed by a learned Division Bench through the impugned judgment.
13. The petitioners have thus sought leave to appeal in this petition against the said judgment.
14. ' The claim of the petitioners is that they would be deemed as owners of the property under the agreements executed by the original owners of the property in their favour in 1975 which were re- affirmed through a subsequent agreement in 1976 and on the basis of which conveyance deeds were also executed in their favour. It was also claimed by the petitioners that under the said agreement the possession of property was delivered to them through attornment and that they had given notices to the tenants including the respondents Nos.1 and 2 who were running the business in the name of M/s. Veny Brothers in a portion of the property through publication in the newspaper on 19-6-1977 vide letter dated 5-2-1978 that they having purchased the property were lawful owners. The respondents Nos.1 and 2, through the suit in question challenged the registered conveyance deeds to be collusive and to have been executed adverse to their interest and to defeat their rights in the property. It was pleaded by them that the agreements and conveyance deeds in question would not be binding upon them as they were in possession of the suit property as its bona fide purchasers which fact was made known to all concerned.
15. ' Learned counsel for the petitioner contended that the payment of--sale price and delivery of possession by attornment to the tenants was acknowledged through the conveyance deeds, therefore, the sale agreement in favour of respondents Nos.1 and 2 would not create any right, title or interest in their favour to be enforced in law. The learned counsel next argued that Hasan Mahboob petitioner in Civil Petition No,117 of 2002 was admittedly minor at the time of sale in question and therefore, no valid title could be passed on his behalf without appointing his guardian at litem by the Court and that since this legal requirement was not fulfilled therefore, decree would not be binding on the said petitioner. Learned counsel submitted that unfortunately the learned Single Judge and also learned Judges of the Division Bench have not properly appreciated this important legal issue in its true perspective. Learned counsel has also made an attempt to challenge the concurrent findings of fact on the ground that the evidence was misread by the learned Judges in the High Court without pointing out any misreading or non-reading of evidence on the record. In the nutshell, the argument of the learned counsel was that the agreement in favour of respondents Nos.1 and 2 would not undo the execution of registered documents and defeat the rights of the petitioners in the property.
16. ' Learned counsel for the respondents Nos.1 and 2 while taking us to certain portions of the judgment passed by the learned Single Judge and also the judgment passed by Division Bench contended that in the given facts and circumstances of the case, the documents being relied upon by the petitioner would not take precedence over the agreement dated 1-7-1976 and argued that the concurrent findings of the two Courts on the questions of facts being not suffering from any misreading or non-reading of evidence would not be open to challenge before this Court. Learned counsel pointed out that a joint written statement was filed on behalf of both the petitioners, real brothers inter se, as defendants in the suit and Hasan Mahboob minor defendant was represented through the counsel engaged by his brother namely Tanvir Mahboob and thus his interest was fully protected, therefore, the objection that without appointment of guardian at litem the decree was invalid was of no substance. In short the learned counsel submitted that as the interest of minor was being protected by his brother therefore, the appointment of guardian at litem was not necessary and that neither the sale for the said reason was defective nor the decree would be invalid.
17. ' The learned Single Judge having given verdict on the principal issue in favour of respondents Nos.1 and 2 with the observation that the transaction between respondents 3 to 12 and 13 was collusive through which they intended to defeat the agreement dated 1-6-1976 decreed the suit.
18. ' Learned Division Bench of the High Court of Sindh in appeal while agreeing with the findings of learned Single Judge relating to the question of delivery of possession of the property through attornment to the tenants as part performance of the agreement observed that the equity of specific performance under agreement dated 1-6-1976 could be enforced independently.
19. ' The learned Division Bench of the High Court while attending the question relating to the genuineness of the agreements dated 21-7-1975 and 11-10-1975 which were claimed to have reaffirmed by the subsequent agreements dated 2-12-1966 and 19-3-1977 held that the seller of the property without cancelling the earlier agreement dated 1-7-1976, knowingly executed the agreements dated 2-12-1976 and 19-3-1977 in favour of the petitioners to defeat the rights of the respondents Nos.1 and 2 in the property and made equity in favour of petitioners. It was further held that the genuineness of these agreements referred to above, would be doubtful as no one was called to the witness-box except one of the petitioners, to prove the execution of said documents and therefore, the finding of learned Single Judge to the effect that these documents were collusive and fraudulent were confirmed.
20. ' The learned counsel has canvassed the following two pivotal points:--
(a) That an agreement executed by the owners of the property in favour of petitioners being prior in time would take precedence over the subsequent agreement dated 1-6-1976 executed in favour of respondents Nos.1 and 2 and the later would be contrary to the law, justice and equity, therefore, the seller would not be allowed to escape his legal obligation on any ground under the first agreement.
(b) That the decree was invalid and not executable as one of the defendants namely Hasan Mahboob was admittedly minor at the time of institution of suit and the Court without appointing his guardian at litem to protect his interest concluded the proceedings and decreed the suit.
21. We having heard the learned counsel for the parties and perused the record with their assistance find that there can be no departure from the view taken by the learned Division Bench in the given facts of the case. The agreement of sale in favour of the petitioners contained a stipulation to do certain acts in future without any right or title in the property to have flown and further the said agreement have not been found genuine by the two Courts, therefore, the conveyance deeds executed in 1977 on the basis of said agreement would fall to ground.
22. ' The learned Division Bench has concluded the issue in the following manner:-- "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.
23. 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.
24. Would be Rs,550,000 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 filed 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, expalined that the request was granted when the suit had been ordered to proceed ex parte against the earlier, 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 vas 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.
21. From an examination of the above cases, it appears that the legal proposition laid down by the Honourable Supreme Court of India in Rain 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 the Court itself and the rights of the parties should not be jeoparadized 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 has caused prejudice to the interest of the respondent No,13."
25. The factual controversy relating to the execution and genuineness of agreements on the basis of which the petitioners have set up their claim and the conveyance deeds which were executed subsequent to the agreement dated 1-6-1976 has been correctly resolved by the learned Judges in the High Court which would not be open to question through reappraisal of evidence before this Court. Learned counsel for the petitioner has not been able to point out any misreading or non- reading of evidence to contend that the conclusion drawn by the learned Judges of the High Court was against the record. We while anxiously attending the respective arguments of the learned counsel for the parties and going through the record made available to us have not been able to find out any misreading or non-reading of the evidence, therefore, the matter does not call for any interference by this Court.
26. ' We having considered the arguments canvassed by the learned counsel for the petitioners that the trial Court was not competent to proceed with the suit and pass the decree without appointing guardian ad-litem of Hassan Mahboob a minor defendant in the suit and petitioner in Civil Petition No,117 of 2002 find no substance in it. Learned Single Judge and also the learned Judges of the Division Bench have extensively diluted upon this question with reference to the law laid down by the superior Courts on the subject in the sub-continent and we while affirming their view hold that no exception can be taken to the law laid down on the subject. We may add that in a case in which a minor defendant in the suit was represented by his father or brother or sister as co-defendant without any conflict of interest and such co-defendant sincerely and effectively defended the rights and interest of the minor in the property, it would be deemed that the rights were sufficiently safeguarded and mere fact that minor was not sued through guardian ad-litem would not make the decree invalid and the same would be binding on the minor. Reliance may be placed on Anandram v. Madholal (AIR 1960 Rajastan 189) and Kameen Khan v. Ghazi Marjan (1990 M LD 1865).
27. In the present case, minor defendant Hasan Mahboob was sufficiently represented as observed by the learned Judges of the High Court, therefore, no prejudice was caused to him as his interest was throughout being watched properly by his co-defendants and a formal defect of not appointing guardian ad-litem of the said minor defendant would not effect the decree. It was held in Syed Ahmed v. Prafulla Kumar De (PLD 1961 Dacca 698) "that the non-recording of a formal order by the Court appointing the person as the guardian of the minor was at best an irregularity and the same was curable under section 99 of the Civil Procedure Code, 1908".
28. ' In Darshan Singh v. Kr. Maheshur Dayal (AIR 1935 Oudh 183) it was observed "that the minor was properly represented and omission of a formal order appointing the guardian was not fatal to the suit".
29. ' The non-fulfilment of formal requirement of appointment of guardian ad-litem of a minor defendant under Order XXXII, rule 3, C.P.C. Would not affect the proceedings in the suit and the decree if ultimately passed, unless it is shown that due to omission of appointment of guardian ad- litem of a minor, who was being represented by his natural guardian, the minor was caused prejudice and the objection would be only of technical importance.
30. ' For the foregoing reasons, these petitions being without any substance are dismissed accordingly.
31. Leave is refused.