Statutory provisions of Order XXXII of the Code of Civil Procedure, 1908 have been ignored.

11. There is one other aspect of the matter at hand, which is worth consideration. The petitioner had instituted the suit against Abid Hussain son of Abdul Rehman. The documents that have been appended by the petitioner with the instant civil revision depict that Abid Hussain at the time of sale, that is, 16.12.2009 was 6 or 6 & ½ years of age and was a student of Class 2 in the year 2014. A certificate from the office of Principal, Oxford Public High School, Darya Khan (Bhakkar) was also placed on the record as Mark-A notifying his parenthood and his class in which said Abid Hussain was studying. It is also noted that during the evidence of the respondent, it was pointed out that he was a minor and that his father had actually bought land in question but the same had been transferred in Abid Hussain’s name. Neither of the parties nor the learned trial court impleaded his father Abdul Rehman, who throughout had been defending the case on behalf of his son Abid Hussain. It is also noted that he was not sued through his father. This aspect was also not taken into consideration by the learned appellate court where again Abid Hussain was impleaded without his next friend nor a guardian was appointed. The petitioner again has not impleaded the said minor through his father nor did the learned counsel for the petitioner pointed out this aspect of the matter during the course of hearing of the instant petition. Statutory provisions of Order XXXII of the Code of Civil Procedure, 1908 have been ignored. However, in view of the above noted facts and circumstances, no prejudice has been caused to the minor. The suit as well as appeal against him were being defended by his real father, who has no interest adverse to him and secondly the concurrent findings of the learned courts below are against the petitioner. Moreover, considering the fact that the provisions of Code of Civil Procedure, 1908 do not relate to the substantive rights of the individuals and these being simply a machinery to achieve an end and that the object and purpose of the above noted Order is to ensure due and proper representation on behalf of the minor, therefore, noncompliance of the said Order ought to be treated as inconsequential in the peculiar facts and circumstances of this case. In this regard reliance is placed on the cases reported as Manager Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another (PLD 1975 S.C. 678) and Adil through Legal Heirs and others v. Ashiq Hussain and others (2003 CLC 945).

Part of Judgment
Lahore High court
Civil Revision
194717/18
2020 LHC 311

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