1980 PLP 254 (SCMR)

Date of hearing : 16th July 1979 KARAM ELAHEE CHAUHAN, J. Mst. Salvat Waqar (vendor) sold the suit land measuring 497 kanals 6 marlas situated in village Deo Khara, Tehsil Chunian, District Qasur, to (f) Muhammad Ismail, (ii) Muhammad Yaqub, (iii) Rahim Bakhsh, (iv) Muhammad Haneef; (v) Khairuddin, and (vi) Muhammad Ashraf (hereinafter called defendants/vendees/petitioners) vide a deed of sale registered on 5‑6‑1974, for a sum of Rs. 299,

820. It is pleaded in this petition that the land was purchased by the petitioners jointly and the earnest money of Rs. 2,79,820 was paid in lump sum before the Sub‑Registrar on behalf of all the petitioners to the vendor, Mst. Salvat Waqar.

2. Muhammad Sarwar and Muhammad Aslam (plaintiffs/respondents instituted a suit on 26‑5‑1975 to pre‑empt the aforesaid sale pleading that they had a preferential right of pre‑emption as against the above mentioned six de fendants/petitioners. They also challenged the price or market value of the land. However, in the plaint all the defendants/petitioners were shown as major or to put it conversely none of the defendants was described as a minor though the defendants on 12‑7‑1975 when they filed their reply or objection to an application instituted by the plaintiffs for claiming some ad interim injunction pleaded that one of the defendants viz. defendant No. 6 Muhammad Ashraf was a minor. The plaintiffs then applied for amendment of the plaint for describing the aforesaid defendant as a minor, being sued through his guardian ad litem namely Mst. Sakina Bibi the mother of the minor. The learned Civil Judge allowed that application and amendment by his order dated 3‑5‑1976.

3. The defendants/petitioners filed a revision petition being Civil Revision No. 357/76 but without any success as the same was dismissed by a learned Single Judge of the Lahore High Court on 8‑10‑1978.

4. The petitioners have come up in a petition for leave to appeal against the same to this Court under Article 185(3) of .the Constitution of 1973.

5. Learned counsel for the defendants/ petitioners raised the same point which had been raised by them before the Courts below, and sub mitted, that a suit against a person who is a minor but is described as a major‑ (or to be more precise is not described or sued as a minor through a guardian ad litem) is not a properly instituted suit against the said minor, with the result, that institution of a suit with that defect is a nullity, and will be considered as having been instituted against him only when a plaint suing him in a proper form is actually filed in Court and if by the time the proper,/amended plaint is filed the limitation for suit has run out then the suit will become time barred and will have to be dismissed qua him at such or qua all the defendants, if their interests are not sever able. It was further submitted that after the period of limitation has run out as above mentioned, even the Court has no jurisdiction to allow the relevant necessary amendment for correcting the description of the afore said minor, because such an amendment will in reality tantamount to add a new party to the suit which will not save that suit from being dismissed as time barred, as pleaded earlier, as a whole if the interest of the minor and other defendants is in-sever able.

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 entrap ped, if we can say due to the aforesaid contrivance of the vendees them selves who purchased land jointly with a minor without on their own part appointing his guardian etc. but rather etc. but rather kept that aspect of the matter screened from all concerned.

7. After administering the above caution we may now refer to of the Limitation Act IX of 1908. It is headed as ' or adding new plaintiff or defendant", and lays down that 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 substi tuted or added. Now if a person is already a defendant but his descrip tion 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 not bound by any proceedings taken as against him where be 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 beets held that 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 appoint ed 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 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. These propositions are well supported by ample case law on the subject and there seems to be no dissention on the subject in any High Court. See Talib Ali Shah v. Piarey Lal and another (A I R 1930 All. 644), Har Lal Singh and another v. Rudra Singh and others (A I R 1927 All. 787), Abdul Aziz Sk. Imam Mussalman and others v. Sk. Burham Mussalman and others (A I R 1941 Nag. 130), Khan Karan and another v. Har Dayal (I L R 4 All. 371), Rup Chand v. Dasodha and another (I L R 1933 All. 55), Ali Yaqin v. Bhagwan Das (A I R 1947 All. 357), Mst. Durga Devi and another v. Gur Narain (A I R 1924 Lah. 157), Imammi v. Saddan and others (18 P R 1901), Anant Ram Das v. Atcharam Das (A I R 1950 Assam 50), Muhammad Abdul s Mannan Mandal and others v. Md. Gani Sarkar and another (6 P L R 20 (Dacca)), Uunus Bhulyan and another v. Jiban Chandra Datta and others (P L D 1963 Dacca 323) and for similar position in appeal see Ralla Singh v. Bishna and others (A I R 1926 Lath. 186).

8. An implied support for the above prepositions is available from a judgment of this Court reported in Ghulam Hussain and others v. Ghaus Bakhsh and others (1968SCMR991). In that case one of the co‑defendants/vendees in a pre‑emption suit was a minor who was described as a major in the plaint. The plaintiff obtained an ex parte decree against the defendants and later applied for its execution. In the execution proceedings an objec tion was taken that as the decree against the minor was obtained without getting, his guardian ad litem appointed it was a nullity and, therefore, its execution could not proceed. This point was conceded and the plaintiff agreed that his execution application should be filed or consigned to the record which was done. Thereafter the plaintiff applied for revival of his suit. The applica tion for revival was accepted and the suit was revived so as to be taken up from the stage at which the illegality had crept in. The defendants ultimately came up to this Court but their appeal was dismissed. The relevant passage in the judgment of this Court at p. 992 is instructive. It reads as follows :‑‑. "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 fortiori the suit instituted by the respondent No. 1 was indisposed 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. The other contention raised in support of the appeal is equally devoid of force for even if it is assumed that the respondent No. 1 had knowledge that the appellants were minors when the suit was filed and he had suppressed this fact from the knowledge of the Court it does not in law follow that after the decree was set aside the plaintiff was precluded from applying to the Court for revival of the suit. No provision of law or precedent was cited by the learned counsel in support of this seemingly untenable proposition. The appeal accordingly fails and its dismissed with costs." 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 that before proceeding further the Court is to appoint his guardian ad litem 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 an 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 miss-description 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 defen dants 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 too 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 sub sequent 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 fulfil ment of that condition precedent or without procuring of an order of the Court on these lines.

9. The upshot of the above discussion is that the amendment allowed and orders passed by the Courts below do not suffer from any infirmity and nor are they in violation of any principle of law relevant to the subject in hand. The appointment of guardian ad litem of the minor. Whereas on the one hand is in the interest of the minor, on the other hand it is for the advancement of justice as it purports to allow the parties to contest their respective case on merits and not on technicalities. It is well settled that the procedure as contained in the Civil Procedure Code is designed to facilitate justice and further its end and not to trip people up. The petitioners cannot be allowed to defeat that law on the kind of technical pleas which are being advanced by them.

10. The result is that this petition has no merit and is dismissed. Petition dismissed.