1986 PLP 682 (MLD)

The trial Court then passed the following order:‑

2. It so happened that against this judgment and decree Mst. Ghulam Aisha, the mother of Allah Ditta minor as his guardian filed appeal before the learned District Judge, Bahawalpur who accepted the same on two grounds:‑ (i) that since Razik Bakhsh was not appointed as guardian of the minor, therefore, he had no authority to make statement on behalf of minor Allah Ditta and as such the interest of the minor does not appear to have been safeguarded by the trial Court while passing the impugned judgment and decree; (ii) that Allah Wasaya being a third person, the oath taken by him could not bind the parties. Resultantly, the judgment and decree of the trial Court were set aside and the case was remanded back to trial Court with the direction that it shall allow a reasonable opportunity to the parties to adduce their evidence on the issues and shall then decide the case afresh in accordance with law, hence this F . A .O.

3. The learned counsel for the appellant while conceding that there was no order of the trial Court appointing Razik Bakhsh to be a guardian of Allah Ditta minor submitted that in the peculiar circumstances of the case, it is at best a case of non‑recording of formal order appointing Razik Bakhsh as guardian ad litem which amounts to an irregularity and that since Allah Wasaya had taken oath as proposed by Razik Bakhsh, therefore, Allah Ditta was bound by the same. Conversely the learned counsel for the respondent borrowed arguments from the order of the learned District ‑Judge. He submitted that the trial Court had not discharged its duty to appoint a proper person as guardian to defendant suit on behalf of minor; that the case was decided on oath proposed by a person not appointed as guardian ad litem, therefore, the interests of the minor were not taken into consideration and that before passing the judgment and decree, the trial Court did not consider as to whether the proposed compromise was for the benefit of the minor or not and as such the judgment and decree was passed in violation of the provisions of Order XXXII, Rule 7, C.P.C. Reliance has been placed on Ghulam Muhammad and another v. Muhammad Feroze and 2 others P L D 1983 Lah. 164 and Ghulam Abbas and others v. Faqir Hussain 1983 C L C 99.

4. I have considered the arguments advanced by the learned counsel for the parties with care. Admittedly, the trial Court did not pass any order appointing Razik Bakhsh to be a guardian of the minor and that there is nothing on record to show that while passing the, impugned judgment, the trial Court took care of the provision of order XXXII, Rule 7, C.P.C. To my mind, the material and most important question for consideration is the legal effect of the omission on the part of the trial Court to appoint Razik Bakhsh guardian ad litem of the minor and failure to consider whether proposed oath/agreement was for the benefit of the minor or not. After having applied my conscious mind to the propositions involving herein, I feel inclined to disagree with the learned appellate Court and the learned counsel for the respondent as well. It is well-recogniged that since the facts of two cases seldom coincide, therefore, each case has to be decided on Its own facts. In the case in hand I am of the view that the omission on the part of the trial Court to appoint guardian ad litem as required by the provision of Order XXXII, Rule 3 is at best an irregularity which does not render the judgment and decree of the trial Court invalid /Ineffective for the following reasons:‑

(i) that Razik Bakhah being real father of the minor was natural guardian; (ii) that on the date fixed for the appearance of the parties, minor was present in person when the trial Court directed plaintiff / appellant to implead minor through a proper representation i.e. a guardian and thereafter he never appeared before the trial Court to object to the authority or desirability of his father to act as his guardian. No objection to Razik Bakhsh's appearance for minor was ever taken. The objection for the first time was raised at appeal stage; (iii) that para. 5 (Jeem ) of plaint where it was stated:‑ was not only admitted as correct but it was also stated: ‑ The words {is kay nasheb-o-faraz ki negadashet bazima walid Sheen hai.} are of great significance. It is thus obvious that Razik Bakhsh was a proper person having no interest in the matter in controversy in the suit adverse to that of the minor; (iv) that there is nothing to show that Razik Bakhsh was of unsound mind; (v) that he had been effectively, diligently and vigilantly pleading the cause of the minor and other defendants; (vi) that no negligence on his part or collusion with other party or fraud has even been suggested by the respondent No.1; (vii) that for all intents and purposes, the trial Court had been recognizing and accepting him as a guardian for the minor. His attendance was always marked as (Number 1 wali Nabalig Mudaa alay). Even at the time of offer, oath and order of the trial Court, his statement was recorded as (wali Nabalig) For all these reasons I am fully convinced that it is a case of mere non‑recording of formal order of appointment of guardian having no adverse effect on the interest/ benefit of minor and the validity of the proceedings.

5. This brings me to the objection raised by the learned counsel for the respondent that the trial Court had not considered the interest of the minor as required by the provisions of Order XXXII, Rule 7, C.P.C. The real question for consideration is as to whether the offer by Razik Bakhsh, the proposed oath, acceptance of offer by Allah Wasaya P.W. statement of Razik Bakhsh subsequent to the oath taken by Allah Wasaya and trial Court's decision thereupon amount to a compromise as envisaged by Rule 7, Order XXXII, C.P.C., or not. In the circumstances and the aforesaid statement of affairs I am of the view that statement of Razik Bakhsh that he will be bound by the statement of Allah Wasaya P.W., does not amount to a compromise attracting the provisions of Rule 7, Order XXXII, C.P.C. and as such it is binding upon the minor without the leave of the Court. I am convinced that it was only a special method of getting early as well as just decision from a Court of competent jurisdiction. As for the case law cited by the learned counsel for the respondent, that being quite distinguishable is not helpful to him.

6. For what has been stated above, the appeal is accepted and the order of the learned appellate Court is set aside and the judgment and decree of the trial Court is restored leaving the parties to bear their own costs. H.B.T. ???????????????????????????????????????????????????????????????????????????????????? Appeal allowed.