1988 PLP 768 (CLC)

Mst. Daulat Bai and another v. Shaukat Rai and another AIR 1931 Lah. .635 and Sawan Ram v. Nachittar Singh A I R 1952 Pepsu 63 rel. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑O. VI, R. 17, O. XXXII, R. 1 & O. XLI, R. 1‑‑Minor represented by his next friend in suit‑‑Such minor not made respondent through his next friend, in appeal‑‑Omission sought to be corrected in memorandum of appeal through amendment refused by First Appellate Court‑‑Validity of order refusing amendment of memorandum of appeal‑‑Such proposed amendment in memo. of appeal, held, was not to cause any material prejudice to respondent who had no valid defence to make in that behalf‑‑Court should have allowed time to appellant to correct error instead of ordering outright dismissal of appeal Minor being already on record, such amendment was neither addition nor substitution of new party to proceedings., (c) Civil Procedure Code (V of 1908)‑‑ ‑‑‑S. 100 & O.XLI, R. 33‑‑Second appeal‑‑Finding of First Appellate Court not on merit‑‑High Court's power to pass decree if there was sufficient material on record for disposal of second appeal on merit; when not to be exercised‑‑In spite of sufficient evidence on recoru necessary for disposal of second appeal on merit, High Court, in absence of respondent who had not appeared to contest, refrained from giving decision on merits‑‑Case was sent back to First Appellate Court for deciding same afresh in accordance with law and observations of High Court. Malik Bashir Hussain, Special Attorney for Appellant. Ex parte for Respondent. Date of hearing: 6th February, 1988. This is a vendee's second appeal in the pre‑emption suit. By sale‑deed registered on 3‑9‑1965, one Fazal Din sold some property to Muhammad Din at the sale price of Rs.4,

000. Sarfraz plaintiff claimed pre‑emption in respect of this sale on the grounds of being related to the vendor and a co‑sharer in the land sold. Since the pre‑emptor was a minor, Sultan Muhammad son of Ghulam Hassan acted as his next friend for the purposes of the pre‑emption suit. Vendee resisted the suit By judgment dated 22‑2‑1969, learned Administrative Civil Judge, Jhelum found for the pre‑emptor and gave him decree for the land on his paying Rs.2,224 to the vendee by or before 26‑3‑1969. In default, it was observed, pre‑emption suit shall stand dismissed. Vendee filed an appeal. It was dismissed by learned District Judge, Jhelum on 4‑10‑1969, on the short ground list the minor had not been represented by his guardian ad litem. Request for amendment to correct the error was declined by the learned District Judge. Second appeal preferred to this Court was admitted to hearing on 4‑5‑1970. Malik Bashir Hussain, Special Attorney of Muhammad Din vendee/ appellant has been heard. Sarfraz Khan though served in person but has not appeared to contest the appeal. Obviously, this appeal is bound to succeed because the learned District Judge has] taken an incorrect view of law. Order XXXII, Rule 1 Civil Procedure Code states that every suit by a minor must be instituted in his name by a person called his next friend. Neither any permission nor order of the Court is required to constitute a person as next friend of the minor. The language of the rule suggests that a person who initiates and brings a suit on behalf of a minor automatically becomes his next friend whereas in the case of a minor defendant an order of the Court for appointment of a guardian ad‑litem is necessary. Like the guardian ad‑litem, next friend of the minor plaintiff continues as such throughout the proceedings arising out of the suit including proceedings in Appellate or Revisional Court and in case of retirement. removal or death of the next friend of a minor plaintiff, further proceedings are stayed until the appointment of another next friend is to take his place. It is clearly seen from Order XXXII, Civil Procedure Code that there is a fundamental distinction between the acceptance of a next friend and the appointment of a guardian ad‑litem. In case of a next friend he takes the initiative and institutes the proceeding. No essential appointment is required. It is also seen from Order XXXII, Rule 3(5), Civil Procedure Code that a person appointed to act as guardian for the minor, unless his appointment is terminated by retirement, removal or death continues as such through out all the proceedings arising out of the suit. Though there is such corresponding rule in the case of next friend but the Courts, have ruled that once a next friend comes on record, he continues at the) subsequent stages unless his removal, retirement or death takes place. Reference in this behalf can with advantage be made to Mst. Daulat Bai and another v. Shaukat Rai and another A I R 1931 Lah. 635 approvingly referred to in Sawan Ram v. Nachittar Singh A I R (39) 1952 Pepsu

63. In appeal before the learned District Judge, it was clear that minor was already being represented by his next friend. Only mistake committed by the appellant was that the minor was not made respondent through his next friend. It was an omission which could have been corrected by allowing amendment of the memorandum of appeal. Proposed amendment was not to cause any material prejudice for the respondent who had no valid defence to make in this behalf. The Court should have allowed time to the appellant to correct the error instead of ordering outright dismissal of the civil appeal. Minor was already on record. It was neither an addition nor substitution of a new party to the proceeding. Section 22 of the Limitation Act did not apply and no question of limitation arose in the case if the; appeal was allowed to be reconstituted in a proper manner by bringing the name of the next friend on record. It is regretted that the learned Appellate Court took a highly technical view of the case. A little more attention to the provisions of law and the decided cases would have shown to the Court that its view was not correct and it may have saved the parties from the prolonged agony of further litigation which has taken almost eighteen years to conclude in this Court. As is apparent, learned District Judge did not record his findings on merits. First appeal, therefore, has not been properly disposed of. Though there is sufficient evidence on record necessary for the disposal of second appeal on merits, yet in the absence of respondent who has not appeared to contest, I would refrain from giving the decision on merits and prefer to send the case back to learned District Judge, Jhelum for deciding it afresh in accordance with law and the observations made above. Malik Bashir Hussain informed me that Sarfraz has since long attained majority and in that view, it may not be necessary to implead him through the next friend. This point shall also receive consideration by the learned Judge below. Accordingly, appeal is allowed, impugned decision dated 4‑10‑1969 of learned District Judge, Jhelum is set aside and the case is remanded to learned District Judge, Jhelum for deciding it afresh. Records be sent to his Court. Appellant who is represented by his Special Attorney has been directed to appear before the Court below on 13‑2‑1988. As for the respondent, learned District Judge shall issue him a fresh notice to secure his presence before him. Since it is an old appeal, learned District Judge shall endeavour to decide it expeditiously. Costs shall abide the event. A.A./M‑588/L Case remanded.