2003 PLP 1147 (CLC)

Date of hearing: 24th March, 2003. Ali Waz Khan filed suit against Jarnail Kalash and 8 others seeking declaration etc. in the Court of learned Senior Civil Judge/Aala Illaqa Qazi, Chitral, The said suit was resisted by the petitioners/defendants by filing written statement. The learned trial Court after framing issues, recording pro and contra evidence of the parties decreed the suit in favour of the respondents/plaintiffs vide judgment and decree dated 4-9-1998. Feeling aggrieved, with the said judgment and decree Jarnail Kalash etc. filed Appeal No.61/13. in the Court of learned District Judge/Zilla Qazi, Chitral, which was dismissed vide judgment and decree dated 24-8-1999. Being not satisfied with the judgments and decrees of the Courts below the petitioners have filed revision petition in hand.

2. Mr. Aziz Akhtar Chughtai, the learned counsel representing the petitioners argued that originally the suit was filed by Ali Waz Khan against Jarnail Kalash and Kabal Kalash, but later on defendants Nos.3 to 9 were added. The defendants Nos.1 and 2 filed written statement in which they took up the plea that the suit property was gifted by Ali Waz Khan in the year 1979 in favour of Soon Muhammad, their predecessor. After the plaint was amended, the added defendants did not file any written statement. Only power of attorney Exh.D.W.-1/1 filed which clearly indicates that Baghi Gul, Ghulam and Arab Gul were minors. As per Order 32, rule 3, C.P.C. guardian at litem of the said minors should have been appointed to safeguard their interests but the mandatory provision was not complied. Reliance was placed on Mashal Khan v. Fazal Karim and another PLD 1963 (W.P.) Pesh. 93 and Mst. Rooah Afza v. Sher Aman Khan and others PLD 1993 Pesh. 49.

3. On the other hand Mr. M. Ajmal Khan, the learned counsel representing respondent No.1 argued that the judgments and decrees passed by the Courts below are based on proper appreciation of evidence available on record. The minors were duly represented by their mother, who had safeguarded their interest, hence no illegality has been committed by the Courts below.

4. I have heard the learned counsel for the parties and perused the record.

5. It is admitted position that Baghi Gul, Arab Gul and Ghulam the added defendants were minors, when they were arrayed as defendants. This fact is clear from the plain reading of special power of attorney Exh. D. W .1 / 1 in which against each minor the age has also been mentioned. It is also admitted position that the added defendants including the minors after amendment of plaint did not file any written statement. They only filed special power of attorney Exh.D.W.1/1. The Courts below also did not take pains to see that the interest of the minors is properly safeguarded acid protected by appointing guardian ad litem. It was mandatory under Order 32, rule 3, C.P.C. that guardian ad litem of the minors should have been appointed which in this case was not done. It is by now settled law that if a minor defendant is not represented properly by guardian ad litem, a decree obtained against such Minor without. guardian ad litem would be nullity in the eye of law. A similar proposition came up for hearing before this Court in Mashal Khan v. Fazal Karim and another PLD 1963 (W.P.) Pesh. 93 in which it was held:-- "As a result" the examination of the authorities cited by Mr. Abdul Latif Khan, no doubt is left in my mind that once it is held that the minor was not duly represented in the proceedings which culminated in a decree or order against him, the decree must be regarded as a nullity or void, and not merely void-able at the instance of the minor on attaining majority. The authorities have clearly, and, if I may say so with respect, rightly, drawn a distinction between the case where a duly appointed guardian of the minor acts negligently or fraudulently, and a case where it cannot be said that there was any duly appointed guardian. In the former case the only course open to the minor is to have the decree set aside, but in the latter he is entitled to regard the decree as a nullity and not binding on him. He need not sue to have it set aside." Similarly in Mst. Rooh Afza v, Sher Aman Khan and others PLD 1993 Pesh. 49 it ,was held:-- "In fact a minor cannot be considered to be a party to a suit unless he is properly represented in the suit by a duly qualified guardian. A decree passed against an unrepresented minor is a decree against a person not a party to the suit and is, therefore, without jurisdiction arid void."

6. Keeping in view the above provision of Order 32, rule 3, B C. P. C. and above dicta I hold. to the interest of above named three minors, out of whom Ghulam and Arab Gul are still minors was note protected properly. The mandatory provisions of Order 32, rule

3. C.P.C. were not followed by the Courts below, I, therefore, accept the revision petition in hand, set aside the judgment and decree dated 21-3-2002 passed by the learned District Judge and remit the case back to him to decide the same afresh strictly in accordance with law after appointing guardian ad litem for the minors, within a period of four months. Parties are directed to appear before the learned District Judge on 23-4-2003 and the office is directed to send the record back immediately. M. B. A/784/P???????????????????????????????????????????????????????????????????????????????????? Petition, accepted