2004 PLP 1387 (YLR)

(10) Whether the minor plaintiff has properly been represented? (11) Whether the defendants are entitled to recover special costs under section 35‑A, Cr.P.C., if so up to what extent? (12) Relief. Evidence of the parties was recorded. Learned trial Court decreed all the suits vide judgment and decree dated 22‑1‑1991. First appeals filed by the petitioners were dismissed by the learned District Judge, Khushab, on 31‑3‑1993. I may note here that the suits were decreed on the sole ground that no application was formally filed under Order XXXII, C.P.C. for appointment of guardian ad litem/next friend of the minor respondent No.4, namely, Niaz Ahmad.

3. Malik Noor Muhammad Awan, learned counsel for the petitioners contends that the impugned judgments and decrees are without jurisdiction inasmuch as the orders passed by the forums of competent jurisdiction had been set aside on non existent ground inasmuch as the respondent No.4 remained represented throughout by a next friend/guardian ad litem. Learned counsel for the contesting respondents, on the other hand, tries to support the impugned judgment and decrees with the contention that since formal order for the appointment of guardian ad litem was not passed, the said partition orders and their confirmation by the Appellate and Revisional Courts is void.

4. I have examined the copies of the records and have reproduced above the entire history of the cases. Before I proceed further in the matter I deem it proper to note down the following almost admitted facts of these cases:‑‑ (i) The plaintiffs/respondents were not original parties to the partition proceedings. They were impleaded as L.Rs. of the said Muhammad Rafique; (ii) as such L.Rs. they could not have taken a plea or a stance inconsistent with the one taken by their predecessor‑in‑interest; (iii) the only objection as regards the partition proceedings that was taken by Muhammad Rafique and was granted by the Additional Commissioner in his order dated 8‑6‑1980 (Exh.D.2) was that partition be ordered in respect of all three joint Khawets. This order was complied with inasmuch as the petitioners did file two other applications; (iv) admittedly all the three Khawets are joint between the parties; (v) there is not a word in the plaint and in the evidence as to what was wrong with the partition ordered by the Tehsildar on its merits; (vi) there is no allegation whatsoever that as a result of the said partition, the plaintiffs/respondents or for that matter any other co‑sharer suffered any loss i.e. any reduction in the entitlement in the joint Khata; and (vii) there is not a word in the entire pleadings or in the evidence as to what prejudice has been caused to respondent No.4, particularly, because of the said orders.

5. It is matter of record that respondent No.4 Niaz Ahmad was impleaded as L.R. and sued through his real mother Ghulam Zohra as guardian ad litem. This would be evident from the copy of the proclamation Exh. D.9. It is further matter of record that the said guardian ad litem i.e. mother of respondent No.4 continuously acted as such throughout the proceedings by filing appeals and revisions. Of course in the present suits his brother Nisar Ahmad was appointed as his next friend. Now the learned District Judge has stated that formal appointment of guardian ad litem was not made. I called upon the learned counsel for the said respondents to demonstrate as to whether this would in any manner derogate from the fact that respondent No.4 throughout was respondent by his mother. He is unable to do so and rightly so. Order XXXII, rule 4, C.P.C. prescribes the following qualifications for a person who can act as next friend or be appointed as guardian for suit. These are:‑‑ (i) Any person who is of sound mind; (ii) is a major and (iii) has no adverse interest to the minor and one condition to determine this fact is that in case of minor plaintiff, he is not defendant in the suit and in case of minor defendant he is not plaintiff in the suit.

6. Now there is no allegation that Ghulam Zohra was not of sound mind and was not a major. There is of course no allegation she had any interest adverse to the minor. This being so, she was fully qualified to act as guardian ad litem or next friend of her son Nisar Ahmad respondent No.4 and this is what she had been doing throughout. There is no allegation that she played fraud upon the respondent No.4 or acted in any manner adverse to his interest. I may refer to the statement of P.W.2 Niaz Ahmad the said respondent No.4. He entered witness‑box on 8‑7‑1991 at a point of time when he had attained the majority. He admitted without any demur and stated as follows:‑‑ The said Nisar Ahmad who acted as his next friend in the present suit appeared as P. W.3. Now he has stated that he did file an application before the Tehsildar that his brother Niaz Ahmad is minor and a guardian be appointed. Now it is matter of record that Niaz Ahmad was sued through Ghulam Zohra his mother as guardian ad litem. Thus it can be safely assumed in view of the said statement of Nisar that she was appointed as such pursuant to the said application. This being so, the only objection raised by the learned District Judge that a formal application for appointment of guardian ad litem was not filed stands negated. Needless to state that in terms of Order XXXII, rule 3(2), C.P.C. an order for appointment of guardian for suit may be obtained upon application in the name and on behalf of minor or by the plaintiff. This witness, however, has denied that his mother had been acting as next friend/guardian in the Revenue Courts on behalf of the minor respondent. This statement is patently false in view of the documentary evidence on the record, already referred to by me as above, to the contrary.

7. It is but apparent on the face of record that the interest of the minor and the other adult plaintiffs/respondents particularly Ghulam Zohra and Nisar Ahmad were identical. There is no allegation that either of the two colluded with present petitioners. I may here refer to the case of Jaffar Abbas and 2 others v. Ahmad and another PLD 1991 SC 1131, a reading of the said I judgment does go to show that where no prejudice as such to the minor is alleged, then non‑compliance of provisions of Order XXXII, C.P.C., would be of no relevance.

8. For all that has been discussed, I do find that the learned Courts below have acted with material irregularity in exercise of their respective jurisdiction while passing the impugned judgments and decrees. All the civil revisions are accordingly allowed and judgments and decrees of both the learned Courts below are set aside. All the three suits filed by the plaintiffs/respondents are dismissed, leaving the parties to bear their own costs. M.I./M‑2150/L Revision accepted.