P L D 2008 Peshawar 116 (PLP)

SYED YAHYA ZAHID GILLANI, J

This revision petition arises from a pre-emption suit wherein the pre-emptor was non-suited because issues Nos.4 and 5 were decided against him which are reproduced below for ready reference:-- (4) Whether the suit is filed by competent person? (5) Whether the plaintiff has made any Talbs, if so, its effect?

2. On issue No.4 learned trial Court held that this pre-emption suit instituted by Muhammad Shafi, as "next friend" of the minor pre-emptor, in existence of the minor's real father and maternal uncles, is incompetent, as Muhammad Shafi could not act as "next friend" of the minor pre-emptor. For this reason issue No.4 was decided against the pre-emptor, holding the suit competent.

3. Issue No.5 pertains to performance of Talb-e-Muwathibat and Talb-e-Ishhad which were also performed by the aforesaid "next friend", Muhammad Shafi, and the trial Court again held that he was not competent to perform Talb-e-Muwathibat and Talb-e-Ishhad on behalf of the minor preemptor and consequently issue No.5 was decided against the pre-emptor.

4. Learned court of appeal affirmed the findings of the trial Court and hence this revision petition.

5. I have heard Mr. Abdul Latif Khan advocate for the petitioner and Mr. Muhammad Younas Khan Tanoli, Advocate for respondents in detail, on the law points involved herein.

6. Touching issue No.4, learned counsel for the petitioner agitated that Order XXXII; C.P.C. elaborately provides a scheme to represent a minor in civil litigation, both as a plaintiff or defendant. He, discussing the relevant rules of Order XXXII C.P.C. concluded that when the plaintiff is minor, anybody major, and having sound mind, can be his next friend, when he has no clash of interest with the minor. This legal position was not properly appreciated by the learned trial Court. Rules have specifically dealt with "next friend" and "guardian ad litem" relating to `minor plaintiff" and "minor defendant", respectively. The trial Court amalgamated the effects of these segregated situations. Learned appellate Court also did not give clear findings on this point and ultimately issue No.4 was wrongly decided against the pre-emptor petitioner.

7. Arguing on issue No.5, he contended that according to section 14 of the N.-W.F.P. Pre-emption Act, 1987, (hereinafter referred as "the Act") Talb-e-Muwathibat and Talb-e-Ishhad can be performed by the "guardian" or "agent" of the pre-emptor when the pre-emptor is unable to make demands. He submitted that since the pre-emptor of the present case was minor, legally he was unable to perform Talbs/demands, and further, he could also not appoint an agent too. Here, learned counsel for the petitioner agitated that the word "guardian" used in section 14 of "the Act" shall be understood in consonance with the terminology of "next friend" used in Order XXXII C.P.C, because, ultimately, the pre-emption suit is also to be filed in civil Court under Order XXXII, C.P.C. wherein a minor is authorized by law to institute a suit through "next friend". He concluded that this legal position could also not be properly understood and applied by both the Courts below and issue No.5 was wrongly decided against the pre-emptor petitioner.

8. Conversely, learned counsel for the respondent-vendee replied that the case pertains to right of pre-emption, having roots in Islamic Law. The right of pre-emption has been codified in the N.-W.F.P. Pre-emption Act, 1987 and its governing section 3 makes it incumbent to interpret and apply the provisions of "the Act" by seeking guidance from the Holy Qur'an, Sunnah and Fiqh. He added that for this reason the word "guardian" used in section 14 of "the Act" shall not be given meaning in conflict with the Injunctions of Islamic whereunder the "father" or grandfather are the natural guardian of a minor and no one else can act as guardian when the father, and in his absence the grandfather are alive. So in this case neither the Talib-e-Muwathibat nor Talb-e-Ishhad nor Talb-e-Khusumat could be performed by Muhammad Shafi, as "next friend". Therefore, both the issues have been rightly decided against the pre-emptor petitioner.

9. I have given my anxious though to the legal intricacies placed before me. First of all I shall resolve the contentions of the counsel for the parties pertaining to institution of a civil suit by the next friend, in general.

10. Perusal of the judgment of trial Court reveals that Civil Judge-V, Mansehra misunderstood representation of a minor in civil suit, for amalgamating the effect of different rules of Order XXXII, C.P.C. and not drawing distinction line between "next friend" and "guardian ad litem". Actually Order XXXII, C.P.C. speaks of "next friend" when the matter is institution of suit on behalf of a minor, and it speaks of "guardian for the suit" when a minor has been sued by some one and he is in the panel of defendants. Qualifications of the next friend have been specifically mentioned: in sub-rules (1) and (2) of Rule 4 of Order XXXII, C.P.C. which is reproduced below for ready reference:- "

4. Who may act as next friend or be appointed guardian for the suit.

(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit: Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff. (2) Where a minor has a guardian. appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers for reasons to be recorded that it is for the minor welfare that another person be permitted to act or to be appointed, as the case may be. (3)

(4)

When we test the credentials of Muhammad Shafi, "next friend" of Mukhtiar Khan, minor plaintiff of this case, he is a major person of sound mind and there is nothing on record that he has any clash of interest with the minor. But, in the special background of pre-emption right involved herein, his competency to act as next friend shall have to be assessed in the light of Injunctions of Islam, because of the conditions imposed by section 3 of the N.-W.F.P. Pre-emption Act, 1987 which is reproduced below for ready reference:-- "

3. Interpretation.

In the interpretation and the application of the provisions of this Act, the Court shall seek guidance from the Holy Qur'an, Sunnah and Fiqh."

11. The language of section 3 (ibid) is unequivocal on the point that all provisions of the Act shall be interpreted and for that matter all the words used in the Act shall be assigned meaning and applied, seeking guidance from the Holy Qur'an, Sunnah and Fiqh. Consequently, there can be no other option with the Courts to apply section 14 of the Act (ibid) keeping it within the parameters of Islamic Law. Section 14 of the Act (ibid) is reproduced below for ready reference:-- "

14. Demands by the guardian or agent.

Where a person is unable to make demands under section 13, his guardian or agent may make the required demands on his behalf." It is correct, that in the instant case the pre-emptor Mukhtiar Khan was minor and he was legally unable to make demands under section 13 of the Act or appoint an agent. So demand under section 13 could only be made on his behalf by his guardian. Here the question arises that who would be the guardian of minor pre-emptor according to the Holy Qur'an Sunnah and Fiqh.

12. In Mulla's Mahommedan Law (Pakistan Addition) compiled by Mian Jamil Ahmad Advocate High Court Lahore, the capacity of Guardian of minor has been discussed in different chapters. The concepts of "Guardian of the Property" of a minor is available in Chapter XVIII section 359 being most relevant is reproduced below:- "

359. Legal guardian of property.

The following persons are entitled in the order mentioned below to be guardian of the property of a minor (e)

(1) the father; (2) the executor appointed by the father's will; (3) the father's father; (4) the executor appointed by the will of the father's father." Here it should be kept in mind that in case of default of legal guardian or their executors, in terms of section 359, clauses (2) and (3), quoted above, guardian of property of minor is appointed by Court, as indicated in next section 360 (ibid).

13. I am of the considered opinion that right of pre-emption is a property based right. So the legal guardian of the property of the minor can be the only person who can decide to exercise this right and not the "next friend" identified in Order XXXII of C.P.C., because it is not an ordinary decision to acquire property by exercising right of pre-emption. We know that in our society this decision some, time creates or invites serious animosities. It is the father or grandfather or the other guardian indicated in Islamic Law who can best look after the interest of minor in exercising his right of pre-emption qua the future eventualities in their surrounding circumstance, which might be some time not properly appreciated by the remotely concerned "next friend" indicated in Order XXXII, C.P.C.

14. As a sequel to above discussion. I hold that in a case where a minor's right of pre-emption is to be exercised, the above indicated legal guardian of the property of the minor shall proceed to exercise that right, and not the "next friend" as defined in order XXXII, C.P.G. 14-A. In the present case it is an admitted fact that the father of minor pre-emptor is alive who is also the legal guardian of the property of minor pre-emptor, as referred in section 14 of "the Act", for all relevant purposes.

15. This being the legal position it was the father of minor pre-emptor who being legal guardian was obliged by law to perform all the Talbs under section 13 of the Act, i.e., to say Talb-e-Muwathibat, Talb-e-Ishhad and Talb-e-Khusumat. Since Talb-e-Khusumat was also to be performed by the guardian of minor pre-emptor in accordance with section 14 of "the Act", therefore, the father shall be deemed to be the "guardian appointed or declared by the competent authority", for the purposes of sub-rule (2) of rule 4 of Order XXXII, C.P.C. because Qur'an and Sunnah is the "competent authority", that appointed and declared him as such. Resultantly, no one else in this case could act as "next friend" of the minor for institution of pre-emption suit, except his father, as guardian under section 14 of "the Act".

16. This being the legal position I hold that since all the three talbs, i.e. Talb-i-Muwathabat, Talb-i-Ishhad and Talb-i-Khusumat were performed for the minor pre-emptor by an incompetent person, who was not this guardian in terms of section 14 of the Act, the right of pre-emption of minor pre-emptor got extinguished, as ordained in section 13 of the Act. Consequently, finding of learned trial as well as appellate Court being not in conflict with the related law, the impugned judgment and decree are not interfereable.

17. The revision petition is found without merits and dismissed. S.A.K./91/P Revision dismissed.