2003 PLP 945 (CLC)

(3) Whether the suit is time-barred? OPD (4) Whether the defendants have affected improvements on the suit land? If so, when, its value and effect? OPD (5) What is the effect of Preliminary Objection No.5 of the written statement? OPD (6) Whether the plaintiffs have a-superior right of pre-emption? OPP (7) Whether the ostensible sale price of Rs.65,000 was fixed in good faith or actually paid? OPD (8) If Issue No.7 is not proved, what was the market value of the suit land at the time of sale? OPD (9) Relief.

3. The plaintiffs were required only to prove that they possessed superior right of pre-emption, therefore, they produced of certified copies of Jamabandi (Exh.P.2) for the year 1972-73 and Exh.P.5 for the year 1976-77, and copy of Mutation No.941 (Exh.P.6) and closed their evidence in support of their claim. The defendants produced three witnesses including defendant No.4. Maula Bakhsh (D.W.1), who claimed to own land contiguous to the land in dispute. According to him, the defendants had obtained possession of disputed land and paid Rs.65,000 4/5 months prior to the attestation of the mutation. According to him, Pir Kamal, Mumtaz Hussain and Allah Bakhsh were present besides him at the time of payment of sale price. He categorically stated in his, examination-in-chief that he did not see Aashiq Hussain plaintiff at the time, when the transaction took place. In cross-examination, he disclosed that a receipt was also executed, which was scribed by one Allah Bakhsh and attested by him and one Noora. Ghulam Muhammad (D. W.2) stated that the agreement was made 4/5 months prior to the attestation of the mutation, whereas the payment was made at the time of the attestation of the mutation. In cross-examination, he disclosed that a sum of Rs.15,000 was paid as earnest money at the time of the agreement in respect of which a receipt was executed, which was scribed by Kamal Shah and attested by Maula Bakhsh and Muhammad Bakhsh, Noor (D.W.3) stated that the payment was made on the table and that the defendants had obtained possession of the land 2/4 months prior to the registration of the sale and one month after the agreement. Ata Muhammad, defendant No.4 stated that the suit land was sold for Rs.65,000: According to him, when they were having a round of the disputed land, they told the plaintiff on their query that they wanted to purchase the disputed land, whereupon plaintiffs advised them not to purchase the suit land. He further stated that the payment of the sale price was made at the time of the agreement and that the mutation was entered 2/3 days after the agreement. In cross-examination, he disclosed that they had obtained possession of the land as tenants 4/5 months prior to the agreement.

4. The suit was decreed by the trial Court but in appeal, the learned Additional District Judge, Chiniot, framed an additional issue to the following effect:-- "Whether the suit has not been properly instituted against defendant No.5?" And remanded the case back to the trial Court for a fresh decision in accordance with law, vide judgment dated 4-4-1988. The validity of the remand order was assailed before this Court through F.A.O. No.126 of 1988, which was accepted vide judgment dated 10-1-1990, with the result this the judgment and decree of the trial Court stood restored. Feeling dissatisfied with the said judgment, the vendees/defendants filed Civil Appeal No.35 of 1990, before the Supreme Court, which was allowed vide judgment dated 16-1-1991 remanding the case back to the First Appellate Court for disposal of appeal in accordance with law by giving findings on all the issues after appraisement of evidence recorded by the trial Court including the additional legal issue framed by that Court.

5. In the above circumstances, the learned Additional District Judge, Chiniot, once again heard the appeal against the judgment of the trial Court dated 27-10-1979 and upheld the findings of the learned trial Court on all the issues. As regards, the additional legal issue, the learned Additional District Judge came to the conclusion that no prejudice in any way had been caused to the defendant No.5, as such the omission to formally appoint the father of defendant No.5 as guardian ad-litem was not fatal to the plaintiff' case. Accordingly, he decided the issue and dismissed the appeal.

6. Learned counsel for the appellants has again attempted to challenge the finding of the learned trial Court on Issues Nos.1 and 2 relating to the waiver. Learned counsel for the appellants simply relied upon the statement of Ata Muhammad (D.W.4), who deposed that the plaintiffs had asked them not to purchase the suit land because its level was a bit high. The statement of Ata Muhammad defendant is not corroborated by any other witness. Learned counsel for the appellants has failed to show any misreading or non-reading of evidence. D. W.1, in his cross-examination, stated in unequivocal, words that Aashiq Hussain was not present at the time of agreement. The finding of facts recorded by the two Courts below need no interference by this Court. The evidence regarding completion of sale and transfer of possession produced by the defendants with reference to Issue No.3 being inconsistent has been rightly discarded by the Courts below. The contention of the learned counsel for the appellants that the suit was instituted on 16-5-1975 is also factually incorrect. The plaint bears the endorsement made by the learned Civil Judge, which shows that it was entertained on 15-5-1975. However it was entered in the relevant Register on 16-5-1975. The mutation was attested on 16-5-1974, therefore, the suit was within time.

7. Lastly, the learned counsel for the appellants disputed the finding of the Court below on the additional issue framed by the First Appellate Court. It has been argued that Fateh Sher (defendant No.5) was admittedly a minor at the time of the institution of the suit and that the plaintiffs were required to file a list of relatives of the minor and other persons, who prima facie were most likely to be capable of acting as guardian of the minor for the suit as required under Order 32, rule 3(3) (as per High Court Amendments Lahore). This list was to be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matter in controversy in the suit adverse to that of the minor and that each person proposed is a fit person to be so appointed. In the absence of such an affidavit, the plaintiff would be deemed to have committed default of compliance of the order of the Court, which would render the plaint liable to rejection:

8. Learned counsel for the respondents contended that under sub -rule (1) of rule 3 where the defendant is found to be a minor, it is the duty of the Court to appoint a proper person to be the guardian for the suit for such minor and that the omission for to appoint a guardian would be fatal only if any prejudice is caused to the minor, Before I proceed further, I would like to reproduce the law as per amendment introduced by the Lahore High Court by way of substituting sub-rules (3) and (4): - "(3) The plaintiff shall file with his plaint a list of relatives of the minor and other persons with their addresses; who prima facie are most likely to be capable of acting as guardian for the suit for a minor defendant. The list shall constitute an application by the plaintiff under sub-rule (2) above. (4) The Court may, at any time after institution of the suit, call upon the plaintiff to furnish such a list, and, in default of compliance, may reject the plaint. (6) Any application for the appointment of a guardian for the suit and any list furnished under this rule 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 each person proposed is a fit person to be so appointed. (7) No order shall be made on any application under this rule, except upon notice 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 the 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: Provided that the Court may, if it sees fit, issue notice to the minor also."

9. The provisions of the Code of Civil Procedure do not relate to the substantive rights of the individuals. Its preamble shows that it was enacted to consolidate the procedure of the Civil Courts. Procedural laws prescribe method of enforcing rights. It is simply a machinery to achieve an end. The Court has to administer the machinery for enforcing rights and duties recognized by substantive law. In other words, the procedural law is a means to an end and not an end in itself. Order 32, C.P.C. relates to suits by or against minors and persons of unsound mind. The basic object of these rules is to ensure due and proper representation on behalf of a minor defendant. Any departure from these rules should not be condoned by the Courts, if it affects the interest of the minor adversely, but if no prejudice is caused to the minor, then the non-compliance of these rules would be inconsequential. In the case in hand, Fateh Sher (minor) was arraigned as defendant alongwith his elder brothers and father, who admittedly purchased the suit land jointly. A perusal of the plaint shows that Fateh Sher was impleaded as defendant through his father as guardian, who is otherwise his natural guardian, he contested the suit, filed written statement and produced evidence not only on his behalf, but also on behalf of his minor son. The plaintiffs not only sued the minor through his father but also made an application for the appointment of the guardian of the minor, Under sub-rule (1), as observed earlier, it was the duty of the Court to appoint a proper person to be guardian for the minor and under sub-rule (4), the Court could ask the plaintiff to furnish such a list of relatives of the minor capable of acting as guardian for minor defendant and in default of compliance the Court had the discretion to reject the plaint. In the circumstances of the case, the omission on the part of the Court to formally appoint a guardian ad-litem when no prejudice is shown to have been caused to the minor is not fatal to plaintiff's suit. I may safely rely upon PLD 1978 SC (AJ&K) 40; PLD 1986 Lahore 373 and AIR 1927 Lahore

861. I, therefore, uphold the finding of the learned Additional District Judge, on the additional issue, as I find no reason to take exception. I find no substance in this appeal, therefore, it is dismissed. No order as to costs. Q.M.H./A-585/L Appeal dismissed.