GHULAM MUHAMMAD AND ANOTHER vs MUHAMMAD FEROZE AND 2 OTHERS

' SAAD SAOOD JAN, J.-This regular,second appeal arises out of a suit for pre-emption filed by the appellants which was dismissed by the trial Court on 17-5-1975. The sale impugned in the suit was evidenced by a mutation attested on 29-5-1973 and the suit was filed on 24-5-1974. During the course of the proceedings, before the trial Court it was noticed that two of the vendees, namely, respondents Nos. 2 and 3, were minors. Upon this, the appellants moved an application before the trial Court that they should be permitted to amend the plaint in order to enable them to sue the minors through a guardian. The application was rejected by the trial Court which then by the same order dismissed the suit as barred by time. From the judgment of the trial Court the appellants have come in appeal to this Court.

2. Rule 3 of Order XXXII of the Code of Civil Procedure deals with suits where one or more defendants are minors. This rule was amended by the Lahore High Court in 1927. The amended rule as applicable in the Punjab reads as follows :-

(1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

(3) The plaintiff shall file with his plaint a list of relatives of the minor and other persons, with their addresses, who prima facie are most likely to be capable of acting as guardian for the suit for a minor defendant. The list shall constitute an application by the plaintiff under sub-rule (2), above.

(4) The court may at any time after institution of the suit call upon the plaintiff to furnish such a list, and, in default of compliance, may reject the plaint.

(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional court and any proceedings in the execution of a decree.

(6) Any application for the appointment of a guardian for the suit and any list furnished under this rule shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that each person proposed is a fit person to be so appointed.

(7) No order shall be made on any application under this rule except upon notice to any guardian of the. Minor appointed or declared by an authority competent in that behalf or, where there is no such guardian, upon notice to the father or other natural guardian of the minor or, where there is no father or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule : "Provided that the court may, if it sees fit, issue notice to the minor also."

A perusal of this rule will indicate that whenever a court finds that a defendant in a suit before it is a minor it must appoint a proper person as a guardian for him during the suit. It is a duty cast upon the court itself even where a plaintiff omits to indicate in his plaint that one or more defendants are minor. In order to discharge its duty in this regard the court can all upon the plaintiff to furnish a list of the relatives of the minor or other persons most suitable to look after his interest. It is only where a plaintiff fails to B comply with this direction of the court that it can reject the plaint. The consideration that the application for the appointment of a guardian is made after the period for filing the suit has expired is entirely irrelevant for the C institution of the suit is complete and saves limitation as soon as the plaint is filed whether or not it is accompanied by an application for the appointment of a guardian for the minor defendant or defendants. In a suit when the defendant is a minor all that the court can do is to stay the proceedings D till steps have been taken for the proper representation of the minor for, otherwise, any decree passed against him will be a nullity.

But there is no authority for the proposition that for the purpose of limitation a minor is to E be treated to have been impleaded only on the day when a guardian is appointed to look after his interest in the suit. We are therefore unable to support the judgment and decree of the learned trial court whereby the appellants' suit has been dismissed merely on the ground that the application for the appointment of guardian for respondents Nos. 2 and 3 was filed after the expiry of the period of limitation.

3. We are informed that one of the respondents, namely, respondent No, 2, has since attained majority, but that the other respondent, namely, respondent No. 1, is still below the age of 18. This is a question of fact and we leave it to the trial Court for examination.

4. For the reasons stated above we set aside the judgment and decree of the trial Court and direct that the trial Court should allow the application of the appellants for the appointment of a guardian for the minor respondent or respondents and if necessary permit them to amend the plaint. The suit should be re-admitted in the register of suits under its original number Sand disposed of in accordance with law. The costs of this appeal shall abide by the final event.