1983 PLP 298 (CLC)

M. N. Javid for Petitioner. Bashir Ahmad Khan for Respondent No.

1. Nemo for Respondents Nos. 2 to

4. Date of hearing : 6th October, 1982. The dispute involved in this case relates to the inheritance of one Ghulam Muhammad who died leaving behind some land. After his death, a suit was filed by some persons including the petitioner, Muhammad Ali, claiming to have inherited the entire land left by Ghulana Muhammad. The suit was prosecuted by a next‑friend (wrongly referred to as guardian ad litem by the two Courts below) on behalf of the petitioner as he was a minor at that time. On attaining majority, he brought another suit in which he, inter alia, challenged the validity of the judgment and decree passed in the earlier suit. His suit was dismissed by a Civil Judge on the ground of res judicata. The petitioner filed an appeal but without success. Hence this civil revision.

2. It was contended by learned counsel for the petitioner that the petitioner had challenged the judgment and decree in the earlier suit on the plea of misconduct and negligence on the part of his next friend and, there fore, his subsequent suit could not be thrown away by applying the doctrine of res judicata. He cited Mst. Bhag Bhari v. Muhammad Anwar with 4 others (Law Notes 1968 Lah. 149) and Iftikhar Hussain Khan v. Beant Singh (A I R 1946 Lah. 233) to support his arguments.

3. On the other hand, it was urged by learned counsel for respondent No. 1, Mst. Naziran Bibi, who was one of the defendants in the suit brought by the petitioner alone, that since the petitioner was a party to the previous suit, the decree passed in that suit would operate as res judicata in regard to the suit brought by him subsequently. Reliance was placed by him on Saadullah Khan and others v. Kaki Jan and others (P L D 1962 Pesh. 171.).

4. In the case of Mst. Bhag Bhari it was held that a minor can avoid the decree against him on the ground of gross negligence of his guardian ad litem. In Iftikhar Hussain Khan's case, it was ruled out that section 11 of the Code of Civil Procedure does not apply to a suit by a minor to vacate decree, obtained against him on account of gross negligence of his guardian ad litem. The relevant observations made in that case read as under :‑ "It cannot be seriously suggested that section 11, Civil P. C., has any application to an action by a minor to have a decree vacated on the ground of gross negligence of his guardian. Under that section the Court is prevented from trying a suit or an issue which has already been determined, but if the judgment previously determining the suit or the issue is vacated because of the right of the applicant to avoid the judgment on the ground of fraud, collusion or gross negligence, the obstacle contemplated by section 11 is automatically removed. The option of avoiding the judgment when exercised vacates the judgment itself." In the case of Saadullah Khan and others, cited by learned counsel for the respondent the question of negligence or misconduct on the part of the guardian ad litem or next friend was not involved and as such it is of little help in the instant case. Therefore, respectfully, following the principle enunciated in the cases of Mst. Rhag Bhari and Iftikhar Hussain Khan, I hold that if a suit is prosecuted by the next friend of a minor he can on attaining majority avoid the decree passed in that suit on the ground that his next friend had been guilty of misconduct or negligence and his plea in this behalf cannot be shut out by invoking the doctrine of res judicata as embodied in section 11 of the Code of Civil Procedure.

5. In this view of the matter, the order of the learned Civil Judge by which the petitioner's suit was dismissed as barred by res judicata as well as the order of the. learned appellate Court by which the said order was affirmed calls for interference. The civil revision is, therefore, accepted, the said two orders are set aside and the suit is remanded to the learned Civil Judge with the direction that he shall proceed to decide it afresh in the light of the above observations and in accordance with law.

6. The parties shall appear before the learned trial Court on 15th November, 1982. There shall be no order to costs. S. Q. Petition accepted.