2008 PLP 875 (MLD)

ZAFAR IQBAL CHAUDHRY, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Amir Bakhsh petitioner has prayed for setting aside of order, dated 21-12-1999 passed by the learned Civil Judge, Faisalabad and all the subsequent proceedings before the Civil Judge 3rd Class, Faisalabad may be declared to have been passed without lawful authority and similarly the order of revision passed by the learned Additional District Judge, dated 3-10-2000 may be declared to have been passed without lawful authority and of no legal effect.

2. The brief facts of the case are that an application under section 12(2), C.P.C. was filed by Mst. Tasneem Bashir respondent No.3 for setting aside of judgment and decree, dated 31-7-1997 passed by the then Civil Judge, Faisalabad. Amir Bakhsh petitioner was served through Bashir Ahmad, husband of Mst. Zakia Bashir, the lady who is grandmother of the minor and acting as guardian ad litem and certain dates had been allowed to Mst. Zakia Bashir to submit a written reply but as she could not do so, the defence of the petitioner was struck off on 21-12-1999 and the case was fixed for recording ex parte evidence. Feeling aggrieved of the said order, the petitioner filed revision petition before the learned Additional District Judge, Faisalabad which was also dismissed vide order, dated 3-10-2000. Hence, this petition before this Court.

3. I have heard the learned counsel for the petitioner and also gone through the record with due care and caution.

4. Admittedly the petitioner was minor at the time of filing of suit who was represented through his grandmother as guardian ad, litem. No doubt representation was made on her behalf before the learned trial Court but due to her ailment she could not file written statement in the Court despite providing opportunity to her and this fact was brought in the notice of the trial Court by way of documentary evidence, i.e. medical evidence but the learned trial Court struck off the defence of the petitioner. Both the Courts below have ignored an important aspect of the case that the petitioner was minor who was representing through his grandmother who was seriously ill and an old lady and it was duty of the Court to protect the interest of the minor under Order XXXII Rule 6 C.P.C. and the defence of the petitioner should not have been struck off. If the minor was not being represented properly due to failure on the part of his guardian the learned trial Court considering the factum of minority and to protect the interest of the petitioner could arrange another guardian ad litem for pursuing the matter. Striking off defence has caused great miscarriage of justice as valuable rights of the petitioner are involved and by striking off right of defence the petitioner may be deprived of the same. The respondent No.3 was proceeded against ex parte after adopting all the necessary measures by substituting service vide order, dated 26-3-2007. After hearing the learned counsel for the petitioner I feel no hesitation to set aside the order, dated 21-12-1999 passed by the learned Civil Judge, Faisalabad and order, dated 3-10-2000 passed by the learned Additional District Judge, Faisalabad as the law imposes duty upon the Court to protect interest of the minor. In this behalf reference is placed on (PLD 1993 Peshawar 49) Mst. Rooh Afza v. Sher Aman Khan and others. I am informed that the petitioner has now attained the age of majority and is in a position to pursue his case personally. In view of the above, this writ petition is accepted and orders, dated 21-12-1999 and 3-10-2000 passed by both the Courts below are hereby set aside and the case is remanded to the learned trial Court with the direction to provide an opportunity to the petitioner to file his written statement in this case. H.B.T./A-6/L Petition accepted.