P L D 1993 Peshawar 49 (PLP)

(c) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑

0. XXXII, R.3‑‑‑Mother's appointment as guardian ad litem of minor when not warranted‑‑‑Where mother's interest in the matter in controversy in suit, was adverse to her minor children, she was disqualified to be appointed as guardian of her minor children; some other near relative or a friend with no adverse interest against minor should be appointed as guardian for minors in the proceedings. (d) Civil Procedure Code (V of 1908)‑‑‑ ‑‑‑‑

0. XXXII, R.3,O.IX, R.6 & S.115‑‑‑Revision‑‑‑Ex parte decree against minors not warranted‑‑‑Where minors were a necessary party to proceedings throughout and they had been unrepresented and proceeded against in absentia or ex parte, judgments and decrees passed by Courts below against them, could not stand operative and same were set aside‑‑‑Suit was remanded for trial afresh in accordance with law. Muhammad Latif for Petitioner. Muhammad Mumtaz Khan for Respondents Nos. 1 to

3. Date of hearing: 28th November, 1992. It is a very unfortunate case. There was filed a Suit No.307/1 in the year 1983 in the Court of Civil Judge, Swabi. Defendants No.6 to 10 were shown as minors and sued through their mother Mst. Gul Parveen, also arraigned herself as defendant No.2. Mst. Gul Parveen did not turn up and so she was placed ex parte but alongwith her minor defendants were also placed ex parte. The suit was contested by defendant No.1 only which was ultimately decreed. Defendant No.l filed an appeal and he arraigned minor defendants Nos. 6 to 10 as respondents Nos. 8 to 12 and sued them through their mother as guardian ad litem. Mother of the minor respondents was served through affixation. No order was passed either way to place anybody ex parte. Appeal was heard as contested on one hand by Mst. Rooh Afza defendant appellant and on the other hand by Sher Aman, Sardar Khan and Mst. Tajbaroo plaintiff decree‑holders arraigned as respondents Nos.1 to

3. Appeal was also ultimately dismissed and at last defendant No. l tiled a revision in this Court and once again the minors were sued through their mother as guardian ad litem. Office of this Court repeated the same mistake and did not care about the proper service of minor respondents and recorded a note that the service of the respondents was complete and the case to be laid before the Court.

2. It was noticed today by this Court at the hearing that throughout the minor respondents have remained unrepresented. Let it be known that a minor defendant or a minor respondent cannot be placed ex parte at all even if the proposed guardian does not turn up in spite of service. 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 and void. In famous Rashid‑un‑Nisa's case published in ILR 31 All. 572, the Privy Council held that a minor having not been properly represented in the litigation shall be deemed not arraigned as a party in the proceedings in accordance with the provisions of the Code of Civil Procedure in the proper sense of the term. Thus, where a minor is represented in a suit by a duly qualified guardian only then he becomes legally a party to the suit and the Court acquires jurisdiction to decide his case.

3. The Code of Civil Procedure has provided for appointment of a guardian for suit for a minor on an application to be supported by an affidavit that the proposed guardian has no interest in the matter in controversy in the suit adverse to the minor and that he is a fit person to be so appointed and the order of appointment of a guardian shall be made after notice to the proposed guardian and minor. There shall be obtained a list of relatives of the minor and other persons qualified to be appointed as guardian of the minor by the Court to serve the purpose that if the proposed guardian does not turn up in spite of service or he declines his consent to be appointed as guardian of the minor the Court shall proceed to issue a notice to the near relatives and other persons in the list, out of whom a suitable person having no adverse interest to the minor shall be appointed as guardian provided he gives consent thereto and in case any person as such does not give consent to his appointment or the Court does not consider him a fit person for appointment as guardian of the minor the Court shall appoint any of its officers or a pleader as guardian of the minor in the suit with direction that the cost shall be borne by the parties or anyone of them or out of any fund in Court in which the minor has the interest. It thus comes to that a minor is to be necessarily represented by a proper person as his guardian in the civil proceedings throughout, i.e. at trial, appeal or revision and in no case he shall be unrepresented or to be placed ex parte for one reason or the other. 3‑A. There is another aspect also not attended to by Courts below that Mst. Gul Parveen the proposed guardian was not a fit person to be appointed as guardian of her minor children since she has interest in the matter in controversy in suit adverse to her minor children. She is alleged to have sold the whole of the suit house including the share of the minor children under a claim that she was the sole owner of the suit house, while the suit house was said to firstly belong to Nawab on whose death it devolved on his son Gulab Sher and two daughters and that latcr on Gulab Sher's estate was inherited by Mst. Gul Parveen and her minor children. For this reason too Mst. Gul Parveen was disqualified to be appointed as guardian of her minor children and some other near relative or a friend with no adverse interest against the minors is to be appointed as guardian for the minors in the proceedings.

4. After having found that the minors were a necessary party to the proceedings throughout and that they have been unrepresented and proceeded against in absentia or ex parte the judgments and decrees passed by the Courts below cannot, therefore, stand operative and the E same are to be accordingly set aside. Resultantly, this revision petition is accepted and the case is remanded to the Court of Civil Judge, Swabi for trial afresh in accordance with law. Parties are left to bear their own costs throughout. AA./1420/P Case remanded.