Ex-Parte Decree in a Guardian case can be set-aside

PLJ 2015 Lahore 748 Present: Muhammad Khalid Mehmood Khan , J. MUHAMMAD QAYYUM & 6 others --Petitioners Versus HAQ NAWAZ DOGAR and another --Respondents Civil Revision No. 2994 of 2004, heard on 13.4.2015. Civil Procedure Code, 1908 (V of 1908)-- ----Ss. 12(2) & 114--Appointment of COC as guardian ad- litem of minors for defending minors in a suit failed to perform his duties--Not cross-examined the witnesses-- Ex - parte decree was passed--Application for setting aside ex-parte decree was refused--Appointment of guardian ad- litem was against law when especially mother of minors was alive--Mother was not asked whether she wanted to become guardian ad- litem --Valuable right was involved--Maintainability of application--Validity--It was duty of guardian ad- litem not to act against minor’s interest and if decree was passed due to negligence of guardian ad- litem the minor is not bound to the decree--It was proven fact that guardian ad- litem had failed to cross-examine witnesses on basis of which trial Court passed the decree--Order for dismissal of application u/S. 12(2), CPC is set aside and application for setting aside was accepted. [Pp. 751 & 753] A & D Civil Procedure Code, 1908 (V of 1908)-- ----S. 12(2)--Appointment as guardian ad- litem of minors for defending minors in a suit--Failed to perform his duties--Not cross-examined the witnesses-- Ex-parte decree was passed--Negligence of guardian ad- litem even proof of negligence is not necessary to be proved--Petitioners had right to file appeal against ex-parte judgment and decree but where judgment debtors claim fraud or decree is out come of fraud the application u/S. 12(2), CPC is maintainable. [P. 751] B Civil Procedure Code, 1908 (V of 1908)-- ----S. 12(2)--Appointment guardian ad- litem of minors for defending suit--Guardian ad- litem is trustee of rights of minor--Failed to cross-examined the witnesses-- Ex-parte decree was passed--Application for setting aside exparte decree, dismissal of--Challenge to--Guardian ad- litem had failed to look after or safeguard rights of minor--He had failed to cross-examine the witnesses who deposed against petitioners interest--Trial Court was not justified to dismiss application but should have set aside exparte decree and minor should have been permitted to defend case their mother. [P. 752] C Malik Amjad Pervaiz , Advocate for Petitioners. M/s. Nisar Ahmad Baryar and Iftikhar Ahmad Mian , Advocates for Respondents. Date of hearing: 13.04.2015 Judgment The petitioners filed an application under the heading of review petition, application under Section 12(2), CPC and under Section 114 CPC for setting-aside ex parte decree dated 31.07.2002 praying that the guardian ad- litem appointed by the trial Court has failed to perform his duties; the decree has been obtained by practicing fraud with the Court, hence, the same is liable to be set-aside. In addition to the above basic grounds, the petitioners have taken number of grounds on merits of the suit and finally that the application under Section 12(2) CPC could not be dismissed summarily. The learned trial Court after hearing the parties on 02.11.2004 dismissed the application and refused to set-aside the ex parte decree dated 31.07.2002. 2. Learned counsel for the petitioners submits that the petitioners are minors and the learned trial Court has appointed the COC and its own Reader as guardian ad- litem of the minors for defending the minors in a suit for specific performance of an agreement filed by Haq Nawaz Dogar ; the COC and Reader of the Court have failed to perform their duties; they have not cross-examined the two witnesses and the learned trial Court has ex parte decreed the suit. Learned counsel submits that the question of fact could only be decided after recording of evidence; it is an admitted fact that the appointment of guardian ad- litem was against law when especially the petitioners’ mother is alive; the learned trial Court has not asked the mother of the minors whether she wanted to become the guardian ad- litem of the minors or not. He has finally submitted that the impugned order for dismissal of the application under Section 12(2), CPC is liable to be set-aside alongwith the decree dated 31.07.2002. 3. Learned counsel for the respondents submits that the learned trial Court has issued number of notices to the mother of the minors who failed to appear in Court and in execution she appeared, hence, her appearance in execution proceedings is sufficient to prove that the pendency of the suit was in the knowledge of the petitioners’ mother. Learned counsel adds that the Court is bound to appoint guardian ad- litem of the minors under Order XXXII Rule 4 of CPC where there is no relative or suitable person is available for appointment as guardian ad- litem ; the learned trial Court thus was justified to appoint COC in the first instance and when COC was retired, the learned trial Court appointed its own Reader as guardian ad- litem of the minors. Learned counsel submits that the impugned judgment and decree was rightly passed against the petitioners and the petitioners’ application for review was not maintainable. The main argument of learned counsel for the respondents is that the petitioners were bound to file an appeal, hence, the application for review and application under Section 12(2), CPC is not maintainable. He has relied on Monazah Parveen versus Bashir Ahmad and 6 others (2003 SCMR 1300), Dost Muhammad (deceased) through L.Rs. versus Muhammad Yousaf and others (2008 SCMR 1339), Muhammad Saleem Qureshi versus VTH Additional District and Sessions Judge, Karachi East and 2 others (2014 MLD 405), Syed Ali Asghar and 3 others versus Creators (Builders and 3 others (2001 SCMR 279), Mrs. Nargis Latif versus Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99), Nazir Ahmed versus Muhammad Sharif and others (2001 SCMR 46), Warriach Zarai Corporation versus F.M.C. United (Pvt.) Ltd. (2006 SCMR 531), Amjad Ikram versus Mst . Asiya Kasuar and 2 others (2015 SCMR 1) and Muhammad Iqbal versus Mehboob Alam (2015 SCMR 21) and finally adds that it is the discretion of the learned trial Court to frame issues and record evidence and the learned trial Court thus is not bound to frame issues and record evidence in every application under Section 12(2), CPC. 4. Heard. Record perused. 5. It is an admitted fact that respondent Haq Nawaz Dogar filed a suit against one Wali Muhammad for specific performance of an agreement. Wali Muhammad submitted his written statement and before recording the evidence he died. The petitioners were impleaded as party being the legal heirs of deceased Wali Muhammad. Record further shows that Wali Muhammad during the pendency of suit has gifted the suit property to the Petitioners Nos.1 to 5. Respondent No. 1 thus amended the plaint. The suit was pending and the learned trial Court half-heartedly tried to procure the attendance of the mother of the minors for obtaining her permission for the appointment as guardian ad- litem of the minors. Record did not show that the learned trial Court has made any serious effort for procuring the personal attendance of the petitioners’ mother. However, the learned trial Court appointed COC of the Court as guardian ad- litem of the minors/petitioners, COC was retired and after that the learned trial Court appointed its own Reader. 6. The petitioners started to produce evidence. Ali Asghar appeared as PW.1. He was cross-examined by the petitioners’ guardian ad- litem ; Khadim Hussain appeared as PW.2 but the guardian ad- litem has not cross-examined the said witness; likewise, he has failed to cross-examine PW.3 in spite of the fact that he was sitting in the Court. It is not understandable why the guardian ad- litem of the petitioners failed to cross-examine two witnesses when a valuable right of the petitioners/defendants was involved in this case. It is the duty of the guardian ad- litem not to act against the minors’ interest and if decree is passed due to negligence of the guardian ad- litem the minor is not bound to the said decree. It is proven fact on record that the guardian ad- litem has failed to cross-examine the respondents’ witnesses on the basis of which the learned trial Court passed the decree. The petitioners in their application have specifically pleaded that the decree has been obtained by fraud, hence, the argument of learned counsel for the respondents that the petitioners were to file an appeal and no review or application under Section 12(2), CPC is maintainable, has no force. No doubt, the petitioners have right to file appeal against the ex parte judgment and decree but where the judgment debtors claim fraud or the decree is outcome of fraud the application under Section 12(2), CPC is maintainable. In the case of negligence of the guardian ad- litem even the proof of negligence is not necessary to be proved. This issue came up for discussion before this Court in Bhagat Ram versus Buta Singh and another (AIR 1935 Lahore 349) and this Court held as under: “It is pointed out that the observations of Field, J., in 12 Cal 69 (3) were in the nature of an obiter dictum and were not concurred in by his colleague. These cases lay down the law definitely that fraud and negligence stand on the same footing and that a minor was not bound by a decree passed against him in a suit where his guardian showed gross negligence by not setting up a good defence of which he must have been aware. They have also quoted a case reported in 3 CLR 17 (7) in which it was held that gross misconduct amounted to fraud. With the law as laid down in these cases I respectfully concur as they are in a line with the view which I entertained independently. With the utmost deference I am not prepared to follow the view of law as laid down by Scott- Smith, J. in 1920 Lah 417 (2). I therefore affirm the decree of the lower appellate Court and dismiss the appeal with costs”. 7. This issue again came up in case Kale Khan versus Masud Husain (AIR 1941 Oudh 223) and the Court held as under:-- “In the present case the plaintiffs wanted a declaration that the decree is not binding on them on the ground that they were not properly represented. Such a right is recognized in law and there must be a remedy for a legal right. Section 108, Oudh Rent Act, bars the jurisdiction of the Civil Court in respect of some suits, but the jurisdiction of the Civil Court in respect of a suit of the present nature is not barred. A Civil Court has jurisdiction to entertain a suit of every nature--- of course of a civil nature---unless its jurisdiction has been barred by some legislative enactment. The jurisdiction of the Civil Court has not been excluded by the Oudh Rent Act or by any other legislative enactment. I therefore hold that the Civil Court has jurisdiction to entertain the suit. This view was held in 54 ALL 646. It has been found by the lower appellate Court that under a custom the plaintiffs were not the heir of Ashiq Ali and the guardian acted with gross negligence. The plaintiffs’ guardian was their uncle Manzoor Ahmad and his interests were adverse to heirs. His liability was decreased if the plaintiffs also shared it. He was grossly negligent in not raising the objection on behalf of the plaintiffs that they were not heirs of Ashiq Ali and so could not be made liable. I think the lower Court was quite right to granting the declaration prayed for by the plaintiffs”. 8. The guardian ad- litem is the trustee of the rights of the minor. In the present case, the guardian ad- litem has failed to look after or safeguard the rights of the minor. He has failed to cross-examine the witnesses who deposed against the petitioners’ interest. The learned trial Court thus was not justified to dismiss the petitioners’ application but should have set-aside the ex parte decree and the minors should have been permitted to defend the case through their mother widow of Muhammad Saleem and the mother of Petitioners Nos. 5 to 7. 9. The upshot of the above discussion is that the impugned order for dismissal of application under Section 12(2), CPC is set-aside and the application under Section 12(2), CPC is accepted and the ex parte decree dated 31.07.2002 is set-aside and the case is remanded to the learned trial Court with the direction that the learned trial Court will decide the suit after providing opportunity of hearing to the parties in accordance with law. 10. The petition is allowed in the above-said terms. (R.A.) Petition allowed