1993 PLP 1999 (CLC)

6. So far as the first contention raised by Mr. Muhammad Sharif is concerned, although Mst. Shamima Sattar was not a party to the ejectment proceedings but there was no controversy in regard to the fact that she was a co‑owner of the property. The appellant besides filing her own affidavit‑in -evidence before the learned Controller also examined Mst. Shamima Sattar as a witness in the case. Although section 15(2)(vii) of the Rented Premises Ordinance indicates that an application seeking ejectment of a tenant on the ground of personal use can be filed by the landlord in case the premises are required in good faith for his own occupation or use for the occupation or use of his spouse or any of his children, but admittedly, Mst. Shamima Saltar was residing with the appellant. It has been held in a number of cases that personal use of the landlord would include the use of the premises by all such persons who are dependent on or residing with him. Although, Mst. Shamima Sattar being a co‑owner of the premises was also entitled to the use of the premises as owner thereof, but even if this highly technical objection raised by Mr. Muhammad Sharif is accepted, the use of the appellant would include the use of the premises by Mst. Shamima Sattar as well, as just pointed out. I, therefore, Find no force in the first contention of Mr. Muhammad Sharif.

7. So far as the second contention of Mr. Muhammad Sharif is concerned, Order 32, Rule 3, C.P Code provides as follows:‑‑ "

3. Guardian for tile suit to be appointed by the Court for minor defendant‑‑(1)Where the defendant is a minor, the Court on being satisfied of the fact of his minority, shall appoint proper person to be guardian for the suit for such minor. (2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. (3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. (4) No order shall be made on any application under this rule except upon notice to minor and to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian, upon notice to the father or other natural guardian of the minor, or where there is no father or other natural guardian, to tile person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub‑rule. A person appointed under s0.rulle (1) to be guardian for the suit for a minor shall, unless his of such throughout all proceedings arising removal or death, continues out of the suit including proceedings in any appellate or revisional Court and any proceedings in the execution of a decree. Sharif, has argued that although the Referring to Rule 3 Mr. Muhamth provisions of Order 32, Rule 3 have not been expressly made applicable to rent cases, nevertheless, the proceedings therefore the Rent Controller being of civil nature, the same would nevertheless be governed by the said provisions. The learned counsel has further argued but this flaw left in the proceedings by failure of the learned Controller to appoint guardian ad‑litem for the two minors in this case, has rendered the entire a proceedings before him as non est. Reliance has been placed by the learned counsel upon Mashal Khan v. Fa7al Khan (PLD 1963 (W.P.) Pesh. 93), hula m Hussain and others v. Ghaus Bakhsh (1968 SCMR 991), Mst. Jar, Bibi v. Zam Khan (1990 CLC 1858) and Muhammad Ismail v. Muhammad Sarwar (1980 SCMR 254).

8. The question as to application or the procedural provisions contained in the Code of Civil Procedure was e0minedl by the Supreme Court in the case of Yusuf v. Mst. Rabia (1985 SCMF 1W')' the question being whether the procedure contained in the C.P.C. governed the hearing of an appeal filed under the Sindh Rented Premises Ordinance, 1979. The Supreme Court while answering the question in the affirmative observed:‑, "There is nothing, in our of opinion nary Procedure attaching to exclude the application, of the ordinary procedure attaching to the High Court in hearing and disposal of civil appeals."

9. Although there is no controversy on the point that the provisions of Order 32, Rules 3,C.P.C. are applicable to proceedings before the Rent controller but Mr.Z.U. Ahmed, learned counsel for the appellant has however contended that procedural law is meant for facilitating justice and mere technicalities of procedure should not be allowed to defeat the ends of justice. Reliance has been placed by him upon Farhat Abbas v. Muhammad Shah 1981 CLC 188 where such observations ere made.

10. Although, there can be no civil with the proposition that provisions of Order 32, rule 3, C.P.C. arc imperative to nature and duty is cast upon the Court to appoint guardian ad‑litem in ca‑sewhere suit has been filed against a minor, but the basic question that requires consideration is whether any defect in the Court proceedings resulting (rtim ("mission to appoint any person as guardian ad‑litem for minor‑defendant would be fatal for such proceedings. Rules 1 and 2 of Order 32 which relate to appointment of next friend are different from Rule 3, because where the plaintiff is a minor, a suit can be riled on his behalf by a next friend who constitutes himself as such. For such appointment no prior order of the Court would be necessary. However, the provisions of Rule 3 are different from those of Rules 1 and 2 inasmuch as an application for appointment of guardian ad‑litem is made after a suit has been filed against a minor‑defendant and such guardian is appointed by an order of the Court. The question as to the effect of non‑compliance with the provision of Rule 3 was considered by Anwarul Haq, J. in the case of Mashal Khan v. Fazal Karim reference to which has earlier been made in this judgment. The observations made by his Lordship which appear at page 101 of the report, are as under:‑‑ "

24. It will, be seen that the consensus of judicial authorities appears to be that/the provisions of Order XXXII, R.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 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 eve of law, as having been passed without w jurisdiction against a person who was not a party before the Court." Reference was also made to the said provisions in the other cases relied upon by Mr. Muhammad Sharif, but none of them directly touches upon the question under consideration. However, in view of the observations made by Anwarul Haq, J. in the above case, with which I respectfully agree the only question that now requires to be determined in the present case is whether any prejudice was caused to the said minors by non‑compliance with the provisions of Order 32, Rule 3, C.P.C. by the learned Controller. The record of the case indicates that no separate Vakalatnama was filed on behalf of the minors, Kashif Aminuddin and Mst. Wajecha, and the case on behalf of the said minors was defended by the rest of the respondents alongwith their own case. The other respondents in the case were the mother, the brother and the sisters of the said minors. There is nothing to indicate that the interest of the minors e was not properly looked after by the other respondents whose interest in fact was common with that of the minors. Consequently, omission in the present case to comply with the provisions of Rule 3 of Order 32 does not appear to have adversely affected the interest of the minors. As has been pointed out by Mr. Z.U. Ahmed, under such circumstances, mere technicalities of procedure should not be allowed to defeat the ends of justice. Although I fully agree with Mr. Muhammad Sharif that any failure to comply with the provisions of Rule 3 of Order 32, C.P.C. in the ordinary circumstances would result in rendering the proceedings null and void but, in my opinion, for the reasons just enumerated by me, no prejudice has been caused to the minors by such non‑compliance.

11. There being no other issue raised by Mr. Muhammad Sharif in the present case, in view of my above findings, I find no reason to depart from the view already taken by me in respect of the merits of the case which have already been discussed in details in my judgment, dated 9‑3‑1992. For the aforesaid reasons, the judgment earlier passed by me is re‑confirmed. A.A./A‑1383/K Order accordingly.