P L D 2007 Quetta 91 (PLP)

AHMED KHAN LASHARI, J.

By this constitutional petition, orders dated 25-1-2006 and 6-4-2006, respectively, passed by Civil Judge and District Judge, Nushki, have been challenged, whereby application filed, by the petitioners under Order XXXII, Rule 1, C.P.C. seeking her appointment as next friend of her minor children, was dismissed and Steno of the Court was appointed as guardian of the minors.

2. The concise facts, giving rise to file instant petition, are that one Master Gul Mir died on 25-11-1998, leaving behind a house and other immovable property being in possession of the respondents. The petitioner No.1, being widow and petitioners Nos. 2 to 5 minor daughters and sons of the deceased, filed suit against the respondents for declaration, partition and recovery of articles in the Court of Civil Judge, Nushki, on the averments that after the death of Master Gul Mir, the respondent No.1 being father and respondents Nos.2 and 3 brothers of deceased, after retaining the article, turned out the petitioners from the house, compelling them to institute the suit. The petitioner No.1, mother of petitioners Nos.2 to 5, vide application under Order XXXII, Rule 1, C.P.C. sought permission of the Court, allowing the minors to sue through next friend. The respondents contested the suit as well as application. The learned trial Court by means of impugned order appointed Steno of the Court as guardian of the minors and dismissed the application. The petitioner No. 1 filed revision petition before `District Judge, which was dismissed, hence this constitutional petition.

3. Mr. Muhammad Qahir Shah, learned counsel for petitioners, contended that in presence of natural guardian i.e. petitioner No.1, there was no occasion for the trial Court to appoint Steno of the Court as next friend of the minors. It was next contended that the Court declined the appointment of next friend on the ground that the District Judge, earlier, on the application of petitioner No.1, under section 7 of the Guardians and Wards Act, declined the relief to her and Civil Judge was appointed as guardian of the property of minors. The conclusion drawn by the Courts below for refusing the relief to the petitioner is not sustainable, as the next friend is to be appointed liberally of a person; who had no adverse interest with the minor or in the suit-property.

4. Respondent No.2 Wahid Bakhsh appeared for himself as well as attorney for respondents Nos. 1 and 3 and submitted that the suit of petitioners was not maintainable on the grounds of law as well as on merit, therefore, impugned orders be maintained and petition be dismissed.

5. We have considered the arguments of learned petitioners' counsel, heard the respondent in person and have gone through the impugned orders, which indicate that prior to institution of suit, petitioner No.1 moved an application under section 7 of the Guardians and Wards Act, 1890, seeking her appointment as guardian of the minors' property, but her application was rejected and in consequence thereof, Civil Judge, Nushki was appointed as guardian. The order was not challenged, which attained finality, thus, the application of petitioner No.1 for appointing her next friend of the minors in the suit was dismissed on the ground that since Senior Civil Judge was guardian of the minors' property, therefore, Steno of the Civil Judge would act as next friend to the minors in the suit. Order XXXII, rule 1, C.P.C.IA provides that every suit by a minor shall be instituted in his name by a person, who in such suit shall be called the next friend of the minor, while Rule 3 of the Order empowers- the Court on being satisfied to appoint a proper person to be guardian of the minor defendant to safeguard his interest. The proper person defined in the Order is the natural guardian of minor i.e. mother, father, grandfather and other relatives. The Court, while appointing a person other than the guardian, should give reasons as held in the case of Badiazzaman and others versus Habibullah reported in PLD 1968 Dacca

919. It may be noted that non appointing of a guardian ad litem to defend the minor is technical in nature and Court is to see whether the interest of minor was properly safeguarded as held in the case of Muhammad Sharif and another versus Nadeem Shah and others reported in 1988 SCMR

804. The rules of procedure should not be used as stumbling block anal in case substantial compliance of the rule is made, the matter should be proceeded anal decided on merit. The petitioner No.1, mother of the minors, on instituting the suit, automatically becomes the next friend of minors and permission of the Court is not necessary in the case, unless it is shown that she was disqualified to act on account of her interest being in conflict with the interest of minors. There was no occasion for appointment of Steno as next friend of the minors bypassing the natural guardian. The conclusion drawn by the Courts below for not appointing the mother as next friend of the minors, on the ground that Civil Judge was appointed as guardian of property of the minors, is erroneous, thus, we allow this petition and set aside the impugned orders. The petitioner No.1 may act as next friend of her minor daughters and sons in the suit filed by her. The parties are directed to bear their own cost. H.B.T./16/Q Petition allowe