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
0 comments:
Post a Comment