1985 PLP 456 (MLD)

This judgment shall dispose of two Regular Second Appeals bearing Nos.52 and 53, both of 1977, from the judgment passed by the learned Additional District Judge, Faisalabad, on 6-1-1977, dismissing the appeals, one filed by Abdul Ghaffar appellant and the other by Ghulam Rasool and Abdul Sattar, respondents Nos. 3 and 4, from the judgment and decree passed by the learned Civil Judge, Jaranwala, on 3-11-1975.

2. The brief facts are that agricultural land measuring 18 Kanals and 8 Marlas situated in Chak No. 120/G.B., Tehsil Jaranwala, District Fisalabad, was sold by lqbal Muhammad Khan, respondent No. 2, its owner, to Abdul Ghaffar appellant who was minor and Abdul Sattar and Ghulam Rasool, the appellants in the other appeal, through a registered sale-deed ostensibly for Rs.18,

000. Muhammad Aslam Khan, respondent No.l, instituted a suit to pre-empt the sale, alleging that he being the brother of the vendor and a co-sharer in the Khata of the land possessed a superior right of pre-emption qua the vendees and that the land had been sold for Rs.10,000, but inflated sale-price had been mentioned in the sale deed to defeat his right of pre-emption. The appellants contested the suit traversing the above allegations. The following issues were framed:- (1) Whether the plaint is insufficiently stamped ? O.P.D. (2) Whether the ostensible sale-price of Rs.18,000 was fixed in good faith and was actually paid ? O.P.D. (3) What is the market value of the suit land ? O.P. Parties. (4) Whether the plaintiff has a superior right of pre-emption qua the defendants? O.P.P. (5) Relief.

3. The parties adduced their respective evidence for and against the issues. The learned Civil Judge, Jaranwala, after appraising the evidence found issues Nos. 2 and 3 in favour of the appellants but deciding issues Nos. 1 and 4 against them decreed the suit against them on payment of Rs.18,000 as sale-price. 4 Feeling aggrieved the vendees filed two separate appeals, one by Abdul Ghaffar minor and the other by Ghulam Rasool and Abdul Sattar. These appeals were heard by the learned Additional District Judge, Faisalabad, who vide his judgment dated 6-1-1977, impugned iii these appeals, upheld the judgment and decree passed by the learned trial Court and dismissed the appeals. The only point which was agitated before the learned lower appellate Court was that since the trial Court did not appoint a guardian ad litem of Abdul Ghaffar minor in accordance with the provisions of Order XXXI1, rule 3, C.P.C. the proceedings culminating in the judgment and decree were invalid. The learned lower appellate Court after perusing the record observed that since Abdul Sattar appellant, co-defendant and real brother of Abdul Ghaffar appellant, acted as his guardian ad litem and contested the suit on Iris behalf also, the omission on the part of the trial Court to formally appoint Abdul Sattar as the guardian ad litem of the minor did not invalidate the proceedings. Feeling dis-satisfied, the appellants have filed these two second appeals.

5. In this Court also, the same plea has been reagitated. It is argued that since the learned trial Court did not pass a specific order appointing Abdul Sattar as the guardian ad litem of Abdul Ghaffar minor, the judgment and decree passed by the learned trial Court are unsustainable. What happened in this case was that the plaint originally filed in the suit did not show Abdul Ghaffar as a minor. On 12-2-1975, the learned trial Court passed an order that since lqbal Muhammad Khan, one of the defendants, was the vendor and an unnecessary party to the suit, his name be deleted and, that since Abdul Ghaffar, one of the other defendants, was stated to be a minor, the plaintiff should file an amended plaint after appointing his guardian ad litem. In compliance with, this order, an amended plaint was filed on the next date of hearing showing Abdul Ghaffar as a minor through Abdul Sattar, one of his co-defendants and his real brother, as his guardian ad litem. The defendants did not raise any objection to this arrangement and the learned trial Court also seems to have accepted the same without, of course, passing a formal order appointing Abdul Sattar as the guardian ad litem of the minor, as contemplated by Order XXXII, rule 3 C.P.C. Admittedly, there was community of interest between Abdul Ghaffar minor and his brother Abdul Sattar, Abdul Sattar contested the suit on his own behalf and on behalf of the minor and it does no appear from the record nor is so alleged that the defence of the suit as put up by Abdul Sattar suffered from fraud or collusion with the plaintiff thereby causing prejudice to the minor. In these circumstances, the omission to pass a formal order under Order XXXII, rule 3, C.P.C, was merely an irregularity which did not vitiate the entire proceedings. This view finds support from Mashal Khan v. Fazal Karim and another P L D 1963 Pesh. 93, in which after reviewing the case law cited at the Bar, it Was observed as follows:-- 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 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 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 eyes of law, as having been passed without jurisdiction against a person who was not a party before the Court. This authority has been actually referred to by Rana Abdur Rahim Khan, Advocate; learned counsel for Ghulam Rasool and Abdul Sattar appellants who after some arguments has frankly conceded the above proposition. The learned counsel for Abdul Ghaffar, minor appellant, also has agreed with him.

6. The learned counsel for the appellants has sought to raise another plea that Notification No. 622-73/447-LR-III, dated 2-3-1973 rescinding the earlier Notification No.196-B, dated 28-2-1944, whereby the land in dispute was not pre-emptible, was not competently issued and in spite of that the earlier notification remains in the field. This plea was not raised in the pleading filed in the trial Court nor in the grounds of appeals filed in the lower appellate Court. Therefore, this plea cannot be allowed to be raised in this Court. Moreover, the learned counsel for the appellants has conceded that this plea raised in another case has riot been accepted by this Court. It is stated that this plea is now under consideration in the Supreme Court. No other point has been urged by the learned counsel for the appellants. Therefore, both the appeals being without substance are dismissed. There shall be no order as to costs. M. Y. H. Appeals dismissed.