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Regular Second Appeal No. 948 of 1979, decided on 26th February, 1986.

---0. XLI, R. 31--Plea not discussed in judgment of Court- Presumption--Where certain plea was not discussed in judgment of Court, presumption, held, would be that such point was not pressed before such Court.

---S. 100--Mixed question of law and fact raised in second appeal- Effect--Mixed question of law and fact sought to be raised in second appeal, having not been raised earlier before trial Court, held, could not be allowed to be pressed for first time in second appeal.

---0. XXXII, R. 3--Guardian for minor--Appointment of--Date of institution of suit--Where guardian was appointed, for defendants who otherwise was party to suit, such suit, held, was to be deemed having been instituted on date when same was filed and not on date when guardian for minor defendants was appointed.

Muhammad Ismail v. Muhammad Sarwar 1980 S C- M R 254; Muhammad Ismail v. Muhammad Sarwar P L D 1978 Lah. 1461 and Ghulam Muhammad v. Muhammad Feroze P L D 1983 Lah. 164 ref.

Dr. A . Basit for Petitioner.

Ch. Muhammad Anwar Bhinder for Respondents.

Date of hearing: 26th February, 1986.

This second appeal arose out of a suit for possession through pre-emption filed by the appellants against the respondents. In the plaint filed, three minors Muhammad Siddique, Muhammad Munir and Muhammad Akram though were cited as defendants but they were not impleaded through a next friend. The appellants however, on 24-1-1973 submitted an application seeking amendment of the plaint so as to implead the aforenoted minors vendees-defendants through their next friend. The explanation offered was that in the registered sale-deed dated 2-9-1971 these vendees were not shown as minors and as the minority of these minors was not within the knowledge of plaintiffs, they impleaded these defendants in their own right alongwith other vendees/defendants. This application was allowed by the learned trial Judge vide order dated 26-2-1973. The vendees filed their written statement on 24-3-1973 wherein inter alia they raised the objection that the suit had become barred by time and was not maintainable because of non-impleading of minor vendees through a next "friend. It was further added that the plaint was not also amended within the period of limitation. The learned trial Court framed necessary issue No.1 based on this objection. Issues with respect to merit of controversy were also framed. The learned trial Court ultimately decreed the suit vide judgment and decree dated 21-7-1975. This decree was challenged by the respondents by filing first appeal on 16-8-1975. In the memo of appeal besides taking other objections with regard to merit of the case, it was also urged that the suit was barred by time as apparently the plaint was presented to the Additional District Judge Gujranwala on 1-9-1972 when the Court of Administrative Civil Judge was open and working. It was pleaded that no suit could be filed in the Court of Additional District Judge on 1-9-1972 and as such there was no proper presentation of plaint on 1-9-1972 and that the suit was, therefore, filed on 9-9-1972 when the plaint was entertained by the learned Senior Civil Judge and that the same date i.e. 9-9-1972 has been indicated in the decree sheet as date of institution. The learned first appellate Court vide judgment dated 23-10-1979 accepted the appeal not on 'the aforenoted ground but accepting the plea that the suit had become barred by time as the guardian ad litem of minors defendants was got appointed on 26-2-1973 and by then the suit had become barred by time. 1n the judgment nothing was said with reference to the plea that the suit had become barred by time as it was presented to the Civil Judge only on 9-9-1972 and that presentation to the learned Additional District Judge was unauthorised. From this, ordinarily it is to be presumed that the said objection was not pressed before the learned first appellate Court. Had this objection been pressed before the learned first appellate Court the same would have been noticed and discussed in the impugned judgment. To rebut this presumption, an affidavit of the counsel who argued the appeal on behalf of the respondents, should have been placed on the record, but that has also not been done. On the other hand, the plea of the learned counsel for the appellants is that under the orders of District Judge dated 31-8-1972, Qazi Muhammad Latif, Additional District Judge Gujranwala was authorised to receive the plaints in first class suits from 1st to 8th September, 1972 or till the arrival of administrative Civil Judge whichever is earlier as no Civil Judge 1st Class was available at Gujranwala. A copy of the order produced shows that due to promotion of Qazi Muhammad Latif and transfer of Mr. Abdul Razzaq Shaikh, Civil Judge, no Civil Judge 1st Class was available at the headquarters.

2. Be that as it may, the question sought to be raised in the second appeal by the learned counsel is a mixed question of fact and law and as such this question cannot be allowed to be pressed into service for the first time in the second appeal. It is pertinent to note that this objection was neither taken in the trial Court nor any issue was claimed in respect thereof. The questions whether at that time no Civil Judge 1st Class was available at the Headquarters to receive plaints and whether alternative arrangements were made by the learned District Judge cannot be decided without requisite evidence which admittedly is not available on record as such a factual plea was not raised before the learned trial Court. This being the position, it is too late to raise this objection while defending the second appeal.

3. Coming to, the question whether the suit had become barred by time due to appointment of the next friend at .a time when the period of limitation for the suit, had expired. The minor defendants were otherwise party as dependents to the suit instituted admittedly within time. This question was answered by the Supreme Court In Muhammad Ismail v. Muhammad Sarwar 1980 SCMR 254 as under:-

"In every suit where the defendant is a minor the right of appointing his guardian is not given to the plaintiff but to the Court. The plaintiff can only suggest who should be appointed his guardian and it is for the Court on being satisfied of the fact of the defendant's minority, to appoint a proper person to be guardian for the suit for such minor. It is, therefore, obvious that the question of appointment of a guardian must come after the institution of suit, but when a guardian is appointed the suit is not deemed to have been instituted against the minor on the date of such appointment but on the date when the suit was filed. "

Learned Judges of the Supreme Court thus affirmed the view of the learned Judge of this Court. (See for the High Court Judgment: Muhammad Ismail v. Muhammad Sarwar P L D 1978 Lah. 1461. The same view was expressed by a Division Bench of this Court in case of Ghulam Muhammad v. Muhammad Feroze P L D 1983 Lah. 164.

4. In this view of matter, there is no alternative but to accept this appeal by setting aside the impugned judgment and decree of the learned first appellate Court. This appeal, therefore, succeeds and is' accepted. The net result is that the decree passed by the learned trial Court stands restored. Parties are left to bear their own costs.

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