2004 PLP 533 (YLR)

Laws Cited

Representation

• Malik Muhammad Ibrahim for Petitioners.
• ----Ss. 12 & 42---Civil Procedure Code (V of 1908), Ss.12 (2) & O. XXXII, R.4(3)-- Suit for specific performance of agreement and declaration---Suit was dismissed by Trial Court, but was decreed by the Appellate Court on basis of `Adhlapi' agreement---Two sons of the defendant, after about twenty-one years filed application under S.12(2), C. P. C. challenging validity of decree of Appellate Court on the plea of fraud and misrepresentation---Said two sons had alleged that at the relevant time they were minors and defendant who was their father had defended suit on their behalf as their alleged guardian ad litem, but . his appointment as guardian ad litem was void as he was appointed without consent and thus had not taken any interest in defending the suit and appeal and furthermore mandatory provisions of O.XXXII, R.4(3), C. P. C. had not been complied with by the Trial Court---Joint written statement was submitted in suit by all the defendants including minors through an advocate---No allegation was made by said two sons in their application under S.12(2), C.P.C. that said Advocate was not appointed as counsel by defendant or that said Advocate was not authorized as to make statement on behalf of defendant---Defendant was father of minors/defendants and no other person was more suitable to safeguard the right of minors---Record showed that interest of defendant/guardian ad litem was not adverse to his minor sons neither any such allegation was made by said two sons in their application under S.12(2), C.P.C.-- Evidence on record had shown that not only suit, but appeal was contested and that minors were fully represented by their guardian ad litem through same advocate who was representing their guardian ad litem---Joint written statement was thumb marked by guardian ad litem and other major defendants---If thumb-impressions of minors were also obtained on said written statement, it was merely a redundant exercise wherefrom it could not be inferred that they were not represented by their guardian ad litem---Nothing was produced to show that defendant was not aware that he was appointed as guardian ad litem and that he had not taken interest in defending the suit and appeal---Both, suits as well as appeal, were contested and were decided on merits---Contention that mandatory provisions of O.XXXI, R.4(3), C.P.C. was not complied with by Trial Court, was without force and was repelled because counsel for defendant had given consent on behalf of his client and appointment of said counsel had never been objected to---Impugned order being based on plausible reasoning and not suffering from any jurisdictional infirmity, could not be interfered with in revision.
• 5. The aforesaid order of the Additional District Judge is assailed by the petitioners in this civil revision on the same grounds which are mentioned in their application under section 12(2), C.P.C. and are already stated in preceding paragraph No.2 with the addition that mandatory provisions of order XXXII, rule 4(3) of C.P.C. was not complied with by the learned trial Court; that Malik Manzoor Ahmad, Advocate who had made statement before the learned trial Court on behalf of Sobha Khan that the said defendant had no objection to be appointed as guardian ad litem of the minors, was neither appointed as a counsel by Sobha Khan nor was authorized to make such statement; that interest of Sobha Khan was adverse to that of the minors and that the controversy was of such a nature that it could not have been resolved without framing issues and recording evidence.
• 7. According to the order recorded by. the learned trial Court on 20-5-1976, service on the aforesaid minor sons of Sobha Khan defendant No. 1 was effected through their father who was proposed to be appointed as their guardian ad litem. On the said date Malik Manzoor Ahmad, Advocate who was present on behalf of Sobha Khan (defendant No. 1) made statement before the learned trial Court that he had no objection if Sobha Khan defendant No. 1 be appointed as guardian as litem of his minor sons viz. defendants Nos.4 to 6. Resultantly, he was appointed as such by the learned trial Court.
• A joint written statement was submitted in the suit by all the respondents (including minors) through Malik Manzoor Ahmad, Advocate. It was not alleged by the petitioners in their -application under section 12(2), C.P.C. that Malik Manzoor Ahmad, Advocate was not appointed as counsel by Sobha Khan and he was, therefore, not authorized to make statement on his behalf. In view of the statement made by the counsel, the learned trial Court was not required to separately record the statement of Sobha Khan. Sobha Khan was duly appointed as guardian ad litem of the minors. In the decree sheet also prepared by the learned trial Court all the defendants are shown to be represented by Malik Manzoor Ahmad, Advocate.
• 8. It is, therefore, evident that the attendance of Malik Manzoor Ahmad, Advocate was marked on behalf of Sobha Khan not only in the inception but also on the day when the proceedings of the civil suit had culminated as is reflected by the decree sheet.
• 10. A perusal of annexure also shows that not only the suit but also the appeal was contested and that the minors were fully represented by their guardian ad litem through the same Advocate who was representing their guardian. The joint written statement was thumb-marked by the guardian ad litem and other major defendants. If thumb-impressions of minors were also obtained on that joint written statement it was merely a redundant exercise wherefrom it cannot be inferred that they were not represented by their guardian ad litem.
• 13. Argument that Malik Manzoor Ahmad, Advocate was neither appointed as counsel by Sobha Khan nor was authorized to make statement on his behalf is repelled being an afterthought as the said allegation was not made in the application under section 12(2), C.P.C. and in addition thereto it is also belied by the record as mentioned hereinbefore.

Judgment & Decree