MUHAMMAD AZAM Versus Mst. KHADIJA BIBI
ALI AKBAR QURESHI, J.--- This civil revision assails the judgment dated 15.04.2009 and 07.11.2008 passed by learned Courts below whereby the application under Order IX, Rule 13 of the Code Civil Procedure, 1908 filed by the petitioners for setting aside the ex parte judgment and decree dated 21.12.2006 was dismissed.
2. The necessary facts for the disposal of this petition are that, respondent No.1 instituted a suit for declaration against the petitioners, the petitioners at the first instance appeared in response of the notice issued by the learned trial Court but thereafter absented from proceedings at the stage of evidence, which resulted in ex parte proceedings followed by an ex-parte judgment and decree dated 21.12.2006. As claimed by the petitioners, the ex-parte decree came into their knowledge on 02.03.2007 whereupon they filed an application under Order IX, Rule 13, C.P.C. for setting aside the same on the grounds, that the petitioners did not appear in the proceedings because of an understanding of compromise and undertaking to withdraw the suit given by the respondents. The application was resisted by the other side on the score of absence of any reasonable ground.
3. Learned trial Court framed necessary issues on the basis of the controversial pleadings, recorded the evidence of the parties and finally dismissed the application. Against the dismissal order an appeal was filed by the petitioners, which too was dismissed by learned appellate Court. Hence this civil revision.
4. Heard. Record perused.
5. On the pointation of the learned counsel for the petitioners during the course of arguments, the record and particularly the contents of the suit filed by the respondents were perused. It revealed, that the respondents while filing the suit for declaration, impleaded Minors in the array of respondents through their real brother namely Muhammad Azam. At the time of filing the suit neither the Guardian-ad-litem was appointed by the Court nor the said Muhammad Azam placed on record any guardian certificate duly issued by the Guardian Judge, but anyhow, after about two years the Court appointed said Muhammad Azam as Guardian-ad-litem of the minors.
6. It has been ruled by the Hon'ble Supreme Court of Pakistan many a times, that the Court should take care of the interest of the minor very jealously. In this case, it depicts from the record, that at the time of filing the written statement and the application for setting aside the ex parte judgment and decree no such objection was raised, which also creates doubt even about the other defendants who were adult, but anyhow, in any case, no order can be passed against the minors. Further, it is in fact the utmost mandatory obligation of the Court to take care of the interest of the minor at the initial stage and in this case learned trial Court as well as learned appellate Court have failed to discharge their mandatory obligation. The relevant provision of law is reproduced here:-
Order XXXII....
(1)...
2. Where suit is instituted without next friend, plaint to be taken off the file-(I) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.
(2) Notice of such application shall be given to such person, and the Court, after hearing his objections (if any), may make such order in the matter as it thinks fit.
3. Guardian for the suit to be appointed by Court for minor defendant.-(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 guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.
(3) Such application 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 he is a fit person to be so appointed.
(4) No order shall be made on any application under this rule except upon notice to the minor and 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.
[(5) A person appointed under sub-rule (I) 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.]"
The Hon'ble Supreme Court of Pakistan in similar circumstances wherein an ex-parte decree was passed against minor, has observed in a judgment cited as Mst. Fauzia Parveen alias Fauzia Tiwana v. Mst. Sahib Khatoon and others (1988 SCMR 552), as under:-
"In this case, the guardian had failed to do her duty and was liable to be removed and substituted by the Court. As the Court happens to be the custodian of the interest of the minors it has to be watchful whether a party discharges its duty or not. We are, therefore, in agreement with the view taken by the two Courts that this omission to ensure proper representation of the minors was a material factor to be taken not of while considering the application for setting aside the ex-parte decree. The minors were, in any case, neither properly served nor properly represented.
So far as the factual aspect of the case is concerned we do not want to interfere with the concurrent findings of fact recorded by the District Judge, and upheld by the learned Judge in Chambers holding that keeping in view that there were Pardahnashin ladies and minors involved the service should have been got effected in a more inspiring manner than was according to the two Courts done in the case.
As regards the question of limitation in filing the application for setting aside the ex parte decree there is, as observed by the learned Judge in the High Court no objection taken at the proper stage by the plaintiff and no issue in that behalf was framed."
In another judgment cited as Tanveer Mahboob and another v. Haroon and others (2003 SCMR 480), the Hon'ble Supreme Court of Pakistan has dealt with the duties of Guardian-ad-litem wherein it is observed, that although the non-appointment of the Guardian-ad-litem is sometimes of technical importance but if such omission caused prejudice to the minor the Courts will take care the interest of the minor. The same is reproduced as under:-
"The non-fulfilment of formal requirement of appointment of a minor defendant under Order XXXII, Rule 3, C.P.C. would not affect the proceedings in the suit and the decree if ultimately passed, unless it is shown that due to omission of appointment of guardian ad-litem of a minor, who was being represented by his natural guardian, the minor was caused prejudice and the objection would be only of technical importance."
In this case, initially the minors were arrayed as defendants through their brother and subsequently after about two years, the real brother of the minors was appointed as guardian-ad-litem, but the record shows that the guardian-ad-litem failed to safeguard the interest of the minors, the Guardian-ad-litem i.e. brother of the minors firstly appeared in the case but subsequently disappeared, this shows the sincerity of the guardian with the minors, therefore, in these circumstances, it can safely be observed, that learned Courts while deciding the application for setting aside the ex parte decree against the minors have failed to exercise the jurisdiction vested with them. Reference is placed upon Mst. Muhammadi and others v. Ghulam Nabi and others (2007 SCMR 761). Relevant part of the judgment is reproduced as under:-
"8. It is also a settled law that the non-compliance of the provisions of Order XXXII, rule 12, C.P.C. would be fatal only in those cases where the interest of the minor was not fully protected and prejudice was caused to the interest of minor as result of such non-compliance as the law laid down by this Court in Mst. Afzal Begum's case (PLD 1979 SC 30). In the present case minors are beneficiary."
7. Learned counsel for the respondents also pointed out that the Court appointed the Guardian-ad-litem but the same is not helpful or has any substance in view of the principle laid down in the afore-said esteemed judgment and further for the reason, that initially the minors were arrayed as defendants through their real brother who could not watch or safeguard the interest of the minors. It is also well settled principle of law, that the suit can be instituted by or on behalf of a competent person and in any case, in the instant case, the minors were arrayed as defendants who were legally not competent to safeguard their interest.
8. It is significant to mention here, that firstly the learned trial Court did not comply with the mandatory requirement of law as given in Order XXXII of the Code of Civil Procedure, 1908, to appoint the Guarding-ad- litem before taking any significant step in the proceedings, therefore, failed to discharge its statutory obligation and same is with the learned first appellate Court, who being the first Court of appeal was obliged to take cognizance of this type of illegality. Although, normally, this Court does not interfere with the concurrent finding in routine but where the courts below have committed a glaring illegality, irregularity and jurisdictional defect, this Court is not denuded of powers or jurisdiction to interfere with the concurrent finding while exercising the revisional jurisdiction conferred upon it under section 115 of the Code of Civil Procedure, 1908. I am fortified by the law laid down by the Hon'ble Supreme Court of Pakistan in judgment cited as Nasir Abbas v. Manzoor Haider Shah (PLD 1989 Supreme Court 568). The relevant portion is reproduced as under:
"11. .....It is also settled that if the lower Court, misreads the evidence on record and fails to take notice of a vital fact appearing therein, comes to an erroneous conclusion, it would be deemed to have acted with material irregularity and its decision is open to revision by the High Court. See Dwarika v. Bagawati (AIR 1939 Rangoon 413) and Fut Chong v. Maung Po Cho (AIR 1929 Rangoon 145)."
In another esteemed judgment cited as Muhammad Nawaz alias Nawaza and others v. Member Judicial, Board of Revenue and others (2014 SCMR 914) the Hon'ble Supreme Court of Pakistan has observed as under:
"8. The argument that when all the fora functioning in the revenue hierarchy concurrently held that the appellants were occupying the land in dispute in their capacity as tenants, such finding being one of fact could not have been interfered with by the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, has not impressed us as a finding does not become sacrosanct because it is concurrent. It becomes sacrosanct only if it is based on proper appraisal of evidence. The finding of the fora functioning in the revenue hierarchy despite being concurrent was not based on proper appraisal of evidence and due application of law, therefore, the High Court was well within its jurisdiction to interfere therewith. For the very condition for conferment of jurisdiction on a Court of law is to render a finding on proper appraisal of evidence and due application of law. If and when it would do otherwise, it would go outside its jurisdiction. Such order can well be quashed in exercise of Constitutional jurisdiction of the High Court."
9. Resultantly, this revision is allowed, the impugned judgments dated 21.12.2006 and 15.04.2009 are set aside and the matter is remanded to learned trial Court to decide the same afresh after providing fair opportunity of hearing to all the parties, strictly in accordance with law. No order as to costs.
ZC/M-339/L Case remanded.