1980 PLP 1256 (CLC)

Kh. Muhammad Farooq for Petitioners. This civil revision is directed against an order, dated the 8th May, 1979, passed by the Civil Judge, Samundri, District Faisalabad, whereby. while deciding a preliminary issue, it was held by him that a suit brought by the respondent No. 1, Muhammad Husain against the petitioners, Bashir Ahmad and three others, and respondent No. 2, Sh. Nazir Ahmad, was not time barred as against defendant No. 4, Munawar Husain, who is petitioner No. 4 in the instant petition.

2. The suit filed by respondent No. 1, hereinafter referred to as the respondent, was for possession of a piece of land by pre-emption. In the plaint, petitioner No. 4, Munawar Husain was described as a major. Then, after the institution of the suit, an application was made for amendment of the plaint so as to show him therein as a minor and appoint his guardian ad item. The amendment was opposed by the petitioners but it was allowed by the learned Civil Judge. Thereafter, the respondent filed An amended plaint to which the petitioners put in an amended written statement contending that the suit against Munawar Husain (defendant petitioner No. 4) was time barred inasmuch as by the time a guardian act litem was appointed for him, the period of limitation had expired. On this, the learned Civil Judge framed the following preliminary issue :- "Whether the suit against defendant No. 4 is barred by time ? O. P. P."

3. The view taken by the learned Civil Judge was that the amendment allowed to the .respondent would take effect from the date of institution' of the suit and thus the question of limitation was settled by that amendment. The preliminary issue was, therefore, decided against the petitioners. Being dissatisfied with the decision of the learned trial Court on the said issue, they have invoked the Revisional jurisdiction of this Court.

4. It was urged by the learned counsel for the petitioners that since defendant No. 4 was not initially impleaded as a minor although he was so, the suit would be deemed to have been instituted against him not on the date when it was filed against him but on the date when the amended plaint was put in and the guardian ad lirem was appointed for him. He cited Ali Muhammad etc. v. Muhammad Husain N L R 1978 Civil 729 (Baghdad-ul-Jadid) to support his plea. The cited case is, however. dis tinguishable on facts. In that case, the plaint in a pre-emption suit was sought to be amended with a view to suing certain minors through their guardian ad litem. Since the prayer for amendment was made after the expiry of the period of limitation it was refused by the trial Court. When the matter was taken to the High Court in revision it was ruled by my learned brother Javed Iqbal, J. that the minors in the case were vendees and a valuable right had accrued in their favour on account of the non. appointment of their guardian ad litem, and if the amendment was allowed at the stage when ordinarily the suit against the minors had become time barred, it would mean that they would be deprived of the said valuable right. His Lordship, therefore, upheld the order of the trial Court re fusing amendment of the plaint. As against this, in the present case an amendment of similar character was allowed by the trial Court and what is now to be seen is the effect of that amendment. The aforesaid observa tions of his Lordship clearly imply that the petitioners herein have alreadv lost the valuable right referred to above in consequence of the amendment allowed ;o the respondent. In other words, the bar of limitation which was to be faced by the respondent in the absence of the amendment of the plaint allowed to them has been removed as -a result of the amendment of the plaint made by them with the permission of the learned trial Court. In this view of the matter, the observations of his Lordship indirectly support the view taken by the learned Civil Judge that the amendment shall take effect from the date of the filing of the suit and not from the date when it was actually effected.

5. There is also a direct authority on the point involved in the present case. It is Muhammad Ismail v. Muhammad Sarwar (P L D 1978 Lah. 1461) in which. after a detailed examination of the case-law on the subject, it was held by my learned brother Aftab Husain, J. that where a minor is incorrectly A described as a major and impleaded as a defendant to the suit he shall be considered to be a party to the suit from the date of the filing of the plaint and not from the date when arrangement for his proper representation as minor is made by the respondent. 6. 1 am, therefore, unable to agree with the learned counsel for the petitioner that defendant No. 4 (petitioner No. 4) in the present case would be deemed to have been impleaded on the date of the amendment of the plaint and not from the date of the institution of the suit. The order of the trial Court is unexceptionable. The revision petition is, accordingly, dismissed in limine. M. Y. M. Petition dismissed.