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Civil Revision No. 801/BWP of 1975, decided on 19th November, 1975.

--- O. I, r. 10 (5) and O. XXXII, r. 5 (2)-Appointment of guardian ad /item-Suit for possession by pre-emption- Minors vendees not impleaded as defendants through their guardian ad /item-Appoint ment of guardian ad litem sought when suit against minors barred by limitation-Minors vendees having received a valuable right in their favour amendment of plaint, held, calculated to depriving them of their vested right and application for amendment of plaint by appointing and introducing name of guardian ad litem, to circumstances, rightly rejected.

Younus Bhuiyan (minor) and another v. Juban Chandu Datta and others P L D 1963 Dacca 323 distinguished.

Muhammad Afzal Sindhoo for Petitioner.

Sh. Ikram-ud-Din for Respondents.

Date of hearing : 19th November 1975.

This civil revision was admitted for full hearing to determine a precise: point as to whether the appointment of a guardian ad litem by the civil

Court subsequently to the institution of the suit would affect limitation or change the character of the suit or not. In the present case the petitioner had filed a suit for possession by pre-emption against the res pondents including two minors, namely Muhammad Islam and Tamil Ahmad, while the suit was pending the petitioner filed an application under Order XXXII, rule 3 pleading that as the aforementioned two respondents were minors and that since their guardian ad Item has not been appointed at the time of the institution of the suit, the petitioner should be allowed to amend his petition so that the aforementioned two minors could be sued Through their guardian ad litem. At that stage when the application was made, the period of limitation or the suit had expired and if at that stage the civil Court had allowed the petitioner to amend his plaint so as to sue the aforementioned two minors with their guardian ad litem, the suit became time-barred. At the same time due to the failure on the part of the peti tioner for not suing the aforementioned two minors through their guardian at the time of the institution of the suit meant that a benefit had accrued in favour of the minors of which they could not be deprived of. Under Order 1, rule 10 (5) a suit against a minor without guardian ad litem could not be instituted. Thus, a suit would be considered to have been instituted only on that date when a minor is sued through his guardian. In the present case the sale took place on the 11th of January, 1974. After the institution of the suit, for the first time when the petitioner applied for amendment of the plaint and prayed for appointment of a guardian ad litem for the aforementioned two minors, the date was the 30th of April. 1975. Thus, when the said application was submitted the suit against the minors had become time-barred. Under Order XXXII, rule 5 (2), C. P. C. if a minor is not represented by a next friend or guardian, he would be discharged from a suit. Learned counsel for the petitioner has attempted to argue that in a suit if an application was made under Order XXXII, rule 3, C. P. C. for the addition of a guardian ad litem for the minors then it would not affect limitation. He placed reliance on Younus Bhuiyan (Minor) and another v. Juban Chandra Datta and others (P L D 1963 Dacca 323). I am afraid this ruling is of no help to learned counsel for it concerns with appeals where delay can be condoned. But we are concerned here with a suit for possession by pre-emption which by itself is a predatory and artificial right. The minors in this case are vendees and a valuable right had accrued in their favour. If the amendment was allowed and the petitioner was permitted at a stage when ordinarily the suit against the minors had, become time barred, it would mean that they would be deprived of the valuable right which had accrued in their favour. I am, therefore, of the considered view that the Senior Civil Judge, Bahawalnagar, in this case passed the correct order when he rejected the application of the petitioner. This civil revision has no merit and is accordingly dismissed.

Revision dismissed.

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