2015 C L C 1320
2015 C L C 1320
[Lahore]
Before Muhammad Khalid Mehmood Khan, J
MUHAMMAD QAYYUM through L.Rs. and 6 others----Petitioners
versus
HAQ NAWAZ DOGAR through Dr. Ali Naqi and another----Respondents
Civil Revision No.2994 of 2004, heard on 13th April, 2015.
(a) Civil Procedure Code (V of 1908)---
----O. XXXII, R.4, Ss.12(2) & 114---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Appointment of officer of court as guardian ad litem of minors---Guardian ad litem---Status and duties---Negligence of guardian ad litem---Requirement of proof---Petitioners (minors) filed application under Ss.12(2) & 114. C.P.C. for setting aside ex parte decree claiming that guardian ad litem appointed by trial court had failed to perform his duties and the decree was obtained by practising fraud with the court, and the trial court, after hearing parties, dismissed the suit in a summary manner---Contentions raised by minors were that appointment of guardian ad litem was against law as petitioner/mother of minors was alive and trial court did not ask the mother for the same, and that guardian ad litem/Reader of the court failed to defend minors in suit for specific performance of agreement by not cross-examining the two witnesses---Respondents took plea that court had issued notices to mother of minors but she failed to appear and the court was bound to appoint guardian ad litem under O.XXXII, R.4, C.P.C. where there was no relative or suitable person was available, and that the present applications under S.12(2) read with S.114, C.P.C. were not maintainable as minors were bound to file appeal---Validity---Record did not show that trial court had made serious effort for procuring personal attendance of minors' mother---Guardian ad litem had failed to cross-examine two witnesses who had deposed against minors' interest---Guardian ad litem was under a duty not to act against minors' interest and if decree was passed due to negligence of guardian ad litem, minors were not bound by the same---Petitioners (minors) had right to file appeal against ex parte judgment and decree, but where judgment debtors claimed that decree was the outcome of fraud, application under S.12(2), C.P.C. was maintainable---In case of negligence of guardian ad litem, negligence was not necessary to be proved---Guardian ad litem was trustee of rights of minors---Guardian ad litem having failed to look after or safeguard rights of minors, minors should have been permitted to defend their case through their mother---Trial court was not justified in dismissing application on behalf of minors---High Court accepted application under S.12(2), C.P.C., set aside judgment and decree of trial court and remanded case to trial court for decision afresh---Revision petition was accepted in circumstances.
(b) Civil Procedure Code (V of 1908)---
----O. XXXII, R. 4----Guardian ad litem---Status and duties---Negligence of guardian ad litem---Requirements of proof---Guardian ad litem is trustee of rights of minors---Guardian ad litem is under a duty not to act against minors' interest and if decree is passed due to negligence of guardian ad litem, the minors are not bound by the same---In case of negligence of guardian ad litem, proof of negligence was not necessary to be proved.
(c) Civil Procedure Code (V of 1908)---
----O. XXXII, R.4---Suit by or against minors by guardian ad litem---Representation of minors in suit through mother---Scope---Minors should have been permitted to defend their case through mother if the guardian ad litem had failed to look after or safeguard the interest of minors.
(d) Civil Procedure Code (V of 1908)---
----Ss. 12(2) & 96----Application under S.12(2), C.P.C. against ex parte decree on ground of fraud---Maintainability---Petitioners though had right to file appeal against ex parte judgment and decree, but where judgment debtors claimed that decree was the outcome of fraud, application under S.12(2), C.P.C. was maintainable.
Monazah Parveen v. Bashir Ahmad and 6 others 2003 SCMR 1300; Dost Muhammad (deceased) through L.Rs. v. Muhammad Yousaf and others 2008 SCMR 1339; Muhammad Saleem Qureshi v. Vth Additional District and Sessions Judge, Karachi East and 2 others 2014 MLD 405; Syed Ali Asghar and 3 others v. Creators (Builders) and 3 others 2001 SCMR 279; Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99; Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46; Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531; Amjad Ikram v. Mst. Asiya Kasuar and 2 others 2015 SCMR 1; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Bhagat Ram v. Buta Singh and another AIR 1935 Lahore 349 and Kale Khan v. Masud Husain AIR 1941 Oudh 223 rel.
Malik Amjad Pervaiz for Petitioner.
Nisar Ahmad Baryar and Iftikhar Ahmad Mian for Respondents.
Date of hearing: 13th April, 2015.
JUDGMENT
MUHAMMAD KHALID MEHMOOD KHAN, J.--- The petitioners filed an application under the heading of review petition, application under section 12(2), C.P.C. and under section 114, C.P.C. for setting-aside ex parte decree dated 31-7-2002 praying that the guardian ad litem appointed by the trial court has failed to perform his duties; the decree has been obtained by practising 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), C.P.C. could not be dismissed summarily. The learned trial court after hearing the parties on 2-11-2004 dismissed the application and refused to set aside the ex parte decree dated 31-7-2002.
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), C.P.C. is liable to be set aside along with the decree dated 31-7-2002.
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 Rule XXXII, Sub-Rule (4) of C.P.C. 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), C.P.C. is not maintainable. He has relied on Monazah Parveen v. Bashir Ahmad and 6 others (2003 SCMR 1300), Dost Muhammad (deceased) through L.Rs. v. Muhammad Yousaf and others (2008 SCMR 1339), Muhammad Saleem Qureshi v. Vth Additional District and Sessions Judge, Karachi East and 2 others (2014 MLD 405), Syed Ali Asghar and 3 others v. Creators (Builders and 3 others (2001 SCMR 279), Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99), Nazir Ahmed v. Muhammad Sharif and others (2001 SCMR 46), Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. (2006 SCMR 531), Amjad Ikram v. Mst. Asiya Kasuar and 2 others (2015 SCMR 1) and Muhammad Iqbal v. 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), C.P.C.
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), C.P.C. 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), C.P.C. 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 v. 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 v. 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), C.P.C is set-aside and the application under section 12(2), C.P.C. is accepted and the ex parte decree dated 31-7-2002 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 abovesaid terms.
SL/M-121/L Petition accepted.
[Lahore]
Before Muhammad Khalid Mehmood Khan, J
MUHAMMAD QAYYUM through L.Rs. and 6 others----Petitioners
versus
HAQ NAWAZ DOGAR through Dr. Ali Naqi and another----Respondents
Civil Revision No.2994 of 2004, heard on 13th April, 2015.
(a) Civil Procedure Code (V of 1908)---
----O. XXXII, R.4, Ss.12(2) & 114---Specific Relief Act (I of 1877), S.12---Suit for specific performance of agreement---Appointment of officer of court as guardian ad litem of minors---Guardian ad litem---Status and duties---Negligence of guardian ad litem---Requirement of proof---Petitioners (minors) filed application under Ss.12(2) & 114. C.P.C. for setting aside ex parte decree claiming that guardian ad litem appointed by trial court had failed to perform his duties and the decree was obtained by practising fraud with the court, and the trial court, after hearing parties, dismissed the suit in a summary manner---Contentions raised by minors were that appointment of guardian ad litem was against law as petitioner/mother of minors was alive and trial court did not ask the mother for the same, and that guardian ad litem/Reader of the court failed to defend minors in suit for specific performance of agreement by not cross-examining the two witnesses---Respondents took plea that court had issued notices to mother of minors but she failed to appear and the court was bound to appoint guardian ad litem under O.XXXII, R.4, C.P.C. where there was no relative or suitable person was available, and that the present applications under S.12(2) read with S.114, C.P.C. were not maintainable as minors were bound to file appeal---Validity---Record did not show that trial court had made serious effort for procuring personal attendance of minors' mother---Guardian ad litem had failed to cross-examine two witnesses who had deposed against minors' interest---Guardian ad litem was under a duty not to act against minors' interest and if decree was passed due to negligence of guardian ad litem, minors were not bound by the same---Petitioners (minors) had right to file appeal against ex parte judgment and decree, but where judgment debtors claimed that decree was the outcome of fraud, application under S.12(2), C.P.C. was maintainable---In case of negligence of guardian ad litem, negligence was not necessary to be proved---Guardian ad litem was trustee of rights of minors---Guardian ad litem having failed to look after or safeguard rights of minors, minors should have been permitted to defend their case through their mother---Trial court was not justified in dismissing application on behalf of minors---High Court accepted application under S.12(2), C.P.C., set aside judgment and decree of trial court and remanded case to trial court for decision afresh---Revision petition was accepted in circumstances.
(b) Civil Procedure Code (V of 1908)---
----O. XXXII, R. 4----Guardian ad litem---Status and duties---Negligence of guardian ad litem---Requirements of proof---Guardian ad litem is trustee of rights of minors---Guardian ad litem is under a duty not to act against minors' interest and if decree is passed due to negligence of guardian ad litem, the minors are not bound by the same---In case of negligence of guardian ad litem, proof of negligence was not necessary to be proved.
(c) Civil Procedure Code (V of 1908)---
----O. XXXII, R.4---Suit by or against minors by guardian ad litem---Representation of minors in suit through mother---Scope---Minors should have been permitted to defend their case through mother if the guardian ad litem had failed to look after or safeguard the interest of minors.
(d) Civil Procedure Code (V of 1908)---
----Ss. 12(2) & 96----Application under S.12(2), C.P.C. against ex parte decree on ground of fraud---Maintainability---Petitioners though had right to file appeal against ex parte judgment and decree, but where judgment debtors claimed that decree was the outcome of fraud, application under S.12(2), C.P.C. was maintainable.
Monazah Parveen v. Bashir Ahmad and 6 others 2003 SCMR 1300; Dost Muhammad (deceased) through L.Rs. v. Muhammad Yousaf and others 2008 SCMR 1339; Muhammad Saleem Qureshi v. Vth Additional District and Sessions Judge, Karachi East and 2 others 2014 MLD 405; Syed Ali Asghar and 3 others v. Creators (Builders) and 3 others 2001 SCMR 279; Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan 2001 SCMR 99; Nazir Ahmed v. Muhammad Sharif and others 2001 SCMR 46; Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. 2006 SCMR 531; Amjad Ikram v. Mst. Asiya Kasuar and 2 others 2015 SCMR 1; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Bhagat Ram v. Buta Singh and another AIR 1935 Lahore 349 and Kale Khan v. Masud Husain AIR 1941 Oudh 223 rel.
Malik Amjad Pervaiz for Petitioner.
Nisar Ahmad Baryar and Iftikhar Ahmad Mian for Respondents.
Date of hearing: 13th April, 2015.
JUDGMENT
MUHAMMAD KHALID MEHMOOD KHAN, J.--- The petitioners filed an application under the heading of review petition, application under section 12(2), C.P.C. and under section 114, C.P.C. for setting-aside ex parte decree dated 31-7-2002 praying that the guardian ad litem appointed by the trial court has failed to perform his duties; the decree has been obtained by practising 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), C.P.C. could not be dismissed summarily. The learned trial court after hearing the parties on 2-11-2004 dismissed the application and refused to set aside the ex parte decree dated 31-7-2002.
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), C.P.C. is liable to be set aside along with the decree dated 31-7-2002.
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 Rule XXXII, Sub-Rule (4) of C.P.C. 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), C.P.C. is not maintainable. He has relied on Monazah Parveen v. Bashir Ahmad and 6 others (2003 SCMR 1300), Dost Muhammad (deceased) through L.Rs. v. Muhammad Yousaf and others (2008 SCMR 1339), Muhammad Saleem Qureshi v. Vth Additional District and Sessions Judge, Karachi East and 2 others (2014 MLD 405), Syed Ali Asghar and 3 others v. Creators (Builders and 3 others (2001 SCMR 279), Mrs. Nargis Latif v. Mrs. Feroz Afaq Ahmed Khan (2001 SCMR 99), Nazir Ahmed v. Muhammad Sharif and others (2001 SCMR 46), Warriach Zarai Corporation v. F.M.C. United (Pvt.) Ltd. (2006 SCMR 531), Amjad Ikram v. Mst. Asiya Kasuar and 2 others (2015 SCMR 1) and Muhammad Iqbal v. 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), C.P.C.
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), C.P.C. 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), C.P.C. 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 v. 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 v. 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), C.P.C is set-aside and the application under section 12(2), C.P.C. is accepted and the ex parte decree dated 31-7-2002 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 abovesaid terms.
SL/M-121/L Petition accepted.
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