1988 PLP 1355 (CLC)

Abdul Matin with Jehmat Jethanand for Applicant (in R.A. Nos.298 and 345 of 1980). A. R. Kazi, for Respondents Nos. 1 and 2 (in R.A. No. 298 of 1980) . Jahmat Jethanand for Respondents Nos.3 to 5 (in R.A. No.298 of 1980). Date of hearing: 18th February, 1987. This order will govern the disposal of the abovenoted two Revision Applications which are filed by the defendants in Suit No. 65 of 1963. The following facts may be stated here which are admitted and which are relevant for the disposal of the above‑noted Revision Applications. Respondents Nos.l and 2 in the Revision Applications instituted Suit No.65 of 1963 for declaration and partition of moveable and immoveable properties left behind by the deceased Jumo. Respondent No.l claims to be the daughter of deceased Jumo while respondent No.2 claims herself as widow of the deceased Jumo. In the suit instituted by respondents 1 and 2 Abdul Hafeez son of late Jumo, Mst. Basrah, the widow of deceased Jumo and Yar Muhammad the grand son of Jumo who then was a minor, were impleaded as defendants. The suit was resisted by the defendants and joint written statement was filed by Abdul Hafeez and Mst. Basran for self as well as for and on behalf of minor Yar Muhammad in which it was alleged that in so far the property described in schedule 'A' of the suit was concerned it was gifted by late Jumo in favour of Yar Muhammad during his life time. While the property described in schedule 'B' was stated to be not available for distribution except the residential house. The defendants also danied the status of respondents 1 and 2 as the daughter and widow of deceased Jumo. During the pendency of the Suit defendant Abdul Hafeez died on 8‑8‑1967 whereupon the respondents 1 and 2 moved application under Order 20, Rule 4, C.P.C. for joining the L. Rs. of the deceased Abdul Hafeez as defendants in the suit. In the application the widow of Abdul Hafeez Mst.' Allah Bachai and his monor sons namely Yar Muhammad, Karo and Ayub were shown as the legal heirs of abdul Hafeez. As the three sons of Abdul Hafeez namely Yar Muhammad, Karo and Ayub were minors another application under Order 32, Rule 3, C.P.C. was also filed but in the application the prayer for appointment of guardian‑ad litem of the minor defendants was made only in respect of Yar Muhammad and Karo. No prayer for appointment of guardian‑ad litem of the minor Ayub was made in that application. From the R&P of the trial Court it is quite clear that while the application under Order 22, Rule 4, C.P.C. filed by respondents Nos.l and 2 was allowed by the Court, no order on the application under Order 32 Rule 3 C.P.C. was passed. The diary also does not show that any notice of this application was issued to be proposed guardian‑ad litem as required by law. Nevertheless, the suit proceeded further without appointment of guardian‑ad litem of minor defendants. However, when Mst. Basran another defendant in the suit died in August, 1972 respondents No.l and 2 filed another application under Order 22, Rule 4 as well as under Order 32, Rule 3, C.P.C. The application under Order 22, Rule 4, C.P.C. was apparently a formality in the case as all the L.Rs. of Mst. Basrah were already on record as defendants in the suit. However, with regard to application for appointment of guardian‑ad litem the court directed issuance of notice to the proposed guardian‑ad litem for 4‑12‑1972. There is nothing on record to show that, thereafter, any order was passed by the Court on the application under Order 32, Rule 3, C.P.C. in which the prayer was made for appointment of guardian‑ad litem of all the three minors for the purposes of the suit. The suit thereafter proceeded and ultimately it was decreed after closing the side of the defendants. The learned trial Court on the basis of the evidence of the suit decreed the claim of respondents Nos.l and

2. On appeal the decree has been affirmed by the first appellate Court. The learned counsel for the petitioner in these Revisions has contended that the judgment and decree passed by the trial Court and confirmed by the first appellate Court is a nullity in the eye of law as the suit has proceeded without appointment of guardian‑ad litem of the minor defendants. It is also contended that the order of the trial Court closing the side of appellants is arbitrary and resulted in serious miscarriage of justice. From the facts stated above it is quite clear that at no stage of the suit a proper guardian‑ad‑litem of the minor defendants was appointed by the Court before passing of the decree. In these circumstances the learned counsel for the applicants rightly contended that the decree passed in suit is a nullity in the eye of law as i the absence of appointment of guardian‑ad‑litem of the minor defendants s the trial Court had no jurisdiction to proceed against the minors an pass decree in the suit. I accordingly allow these Revision Applications, set aside the judgments and decrees of the Courts below. The case is remanded back to the trial Court with the direction to appoint guardian‑ad‑litem of the minor defendants in the suit before taking any further proceedings in case, if the minors are still under age. However, if it is found that the minors have attained majority meanwhile, summons may be served directly on them to ‑enable them to arrange their defence in the suit. The trial Court will allow appropriate opportunity to the guardian‑ad litem if appointed or to the minors if they are served directly in the suit to file written statements. As the case is being remanded back and minor defendant will be entitled to file written statement and .the case will proceed from that stage, the defendants whose side was closed by the trial Court in the suit will be .entitled to lead further evidence and suit will be disposed of in accordance with the law. There will be no order as to costs. H . B . T . / Y‑14/ K Revision applications allowed.