1991 PLP 566 (MLD)

4. Plaintiff has now come up to this Court in -this appeal against the thus passed order of remand.

5. Only one argument of formidable nature raised in support of this appeal is. that the order of remand has been passed mechanically, without either going through the authorities cited at the Bar, mentioned in the impugned order or attending to all the facts (detailed above) which clearly manifest that interest of the minor was adequately and effectively represented -by his mother, a natural guardian, with the implicit sanction of- the trial Court so that the absence of a formal order on the point was a mere irregularity which could not, have led to the trial Court's decree being reversed inasmuch as -it was saved by the provisions of section 99 of the C.P.C.

6. None of the cases cited for the defendants in the appeal below is much in point and it seems that the appellate Judge did not even go through them. The first-mentioned case of 1988, which is from Karachi, is very brief not containing any discussion of the law-point and has merely approved the contention raised by the counsel with regard to the decree being a nullity; the next case of the Supreme Court is not in point' at all. It relates to abatement of suits and impleading of legal-representatives. There is no question of minority of a party or its representation dealt with in it. Remaining three cases, two from Lahore and the one from Baghdad-ul-Jadid, have simply reaffirmed the general proposition that a decree passed against a minor without anyone representing his interest is a nullity. There is no cavil with this statement of law but the situation here is different inasmuch as the minor Rashad had his interest in fact duly represented in the suit. This feature of the case is not dealt with in any of the aforementioned reported cases which f6und favour with the appellate Judge below.

7. In the case in hand, not only the proceedings in the trial Court were actually carried on with Mst. Hameeda (mother of the minor) cited as his guardian in addition to herself also being arrayed as one of the defendants but also the appeal below was in fact jointly maintained by all the defendants with her acting as such, of course, without any explicit order passed for her being so A appointed and this omission, in such a situation, had to be regarded as only inconsequential because there was nothing to suggest that interest of the minor was not duly represented, and much less has any prejudice been shown to be caused to the minor by the omission whereto section 99 of the C.P.C. squarely got attracted. Reliance for the plaintiff was rightly placed in the appeal below on Syed Ahmad v. Prafulla Kumar De and others PLD 1961 Dacca 698 because therein it was conctaded on the authority of Mst. Bibi Walian and others v. Banke Behari Pershad Singh and others 30 A.I. 182 that where notices are found issued and duly served upon the minor and proposed guardian but a formal order of appointment of guardian ad-litem is not made, the defect 'is a mere irregularity curable under section 99 of the C.P.C. It will also be worthwhile to herein reproduce relevant part of the afore cited judgment of the House of Lords. It was therein held as under:-- "Where it appears that in a suil the minor's interests were effectively represented by their' mother with the sanction of the Court, the absence of the formal order appointing her and an immaterial defect of service of summons on the minors and their guardian, not shown to have caused any prejudice to them, are, mere irregularities, which, under S.578 (now Section 99 of the present Code of Civil Procedure) would not be ground for reversing judgment and execution proceedings on appeal, or in a separate suit for that purpose." Another precedent directly in point is the case, Paran Munda J and another v. Santosh Mahto and others AIR 1942 Patna 372 wherein is to be found as hereunder: -- "In the first appellate Court one of the respondents died and the minor sons were brought on the record as legal representatives under the guardianship of their mother who was their natural guardian. The proper steps for her appointment as guardian ad-litem were not observed. The guardian of the minors did not in fact appear, but all the adult respondents appeared in the Court. There was no defence open to the minors other than that taken by the adult respondents; in the second appellate Court the minors appeared through a guardian ad-litem appointed by that Court, and denied that their interests were prejudiced by the non-appearance of their mother in the Court below: Held that since no prejudice had accrued to the minors the omission to adopt the procedure which should have been adopted for the appointment of a guardian ad-litem did not justify a reversal of the decree."

8. In the present case it is not claimed that defence of the minor Rashad could possibly be any different from that of his other close relatives arrayed in the suit and it has not been indicated as to what difference would have been made with the passing, of a formal order for the appointment of any guardian ad-litem. E3 There is no prejudice shown to have resulted from the omission to formally appoint anyone as his guardian ad-litem inasmuch as his mother (a natural guardian) has all along represented him, upon an undoubtedly self-assumed responsibility which could not possibly have assumed any other shape in her being so designated through a formally passed order of the Court. Section 99 of the C.P.C. provides as under: "

99. No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any misjoinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court."

9. In the aforementioned facts of, the litigation and the above law, there really was not available any basis for the Additional District Judge to set aside the trial Court's decree and remand the suit.

10. Result of the foregoing is that the order dated 13-3-1989 passed in the appeal below is clearly not sustainable and the same is set aside upon accepting this appeal. In consequence, appeal of the defendants in the District Court will be considered as still pending at its original number having to be decided afresh accordance with law. Learned appellate Judge below will proceed to so decide that appeal. Costs hereof are left to be borne by the parties themselves. AA./M-2553/L Appeal accepted.