Petition of Ariba Naeem: In case guardian is not appointed, decree against child remains void: LHC

LAHORE: The Lahore High Court held that in cases where a minor remained without proper representation and there is no duly appointed guardian, the decree passed, is nullity in the eye of law and void and the minor is not even required to get it set aside.

The court passed these orders in a petition of Ariba Naeem and another against a decision of a trial court that proceed against the minor ex-parte and passed a decree.

The court observed as a natural corollary, no order or decree can be validly passed against a minor in such a suit, and any ex-parte proceedings conducted against him will not bind him or his estate at all.

The court said, careful perusal of Order XXXII of the CPC indicates that a minor neither can sue by himself nor can he be sued without being represented by someone else. Hence, on this ground alone, the ex-parte proceedings followed by the ex-parte judgment and decree are nullity in the eye of law, the court said.

The court observed that in the present case, the mother could have been motivated with ulterior designs or negligent and proceeded ex-parte, however, her acts or omissions, whether with or without any mala fide cannot be made basis for initiation of adverse proceedings against the minors. It is obligatory upon the court to overlook the procedural irregularity in the appointment of guardian where the minor has been duly represented by irregularly appointed guardian.

However, any irregularity in the appointment of the guardian may be overlooked as a procedural irregularity but this is subject to an overriding condition that such irregularity ought not to have prejudiced the minor and that his right to due representation in the proceedings must not have suffered any injury, the court added.

The court said if a guardian is appointed and neglects to perform his/her duty towards the interest of the minors, the courts are always under an obligation to protect the interest of such minor and in the first place ensure that a person from the near relatives are appointed as the guardian to defend the interest of the minor and in the absence of the same or the neglect of such guardian should appoint its own staff to act in the said capacity.

However, when the mother subsequently elected not to appear, the trial court was obligated not to proceed without appointment of a guardian.

The failure of the mother in protecting the rights of the minors is well evident from the record as far as the proceedings that took place in the suit instituted by the plaintiff.

Therefore, the decree itself to the extent of the minors is not merely voidable calling upon the minors to get it set aside rather the same is void and nullity in the eye of law.

Adverting to the constitutional petition filed by the mother, she entered appearance in the suit and failed to defend the suit on her own behalf. She averred that she could not appear on account of her daughter being not well which is not supported by any evidence.

It does not appeal to logic that she was hampered to appear in the suit and was in a position to get her appointed as guardian and subsequently sell the suit property to M/s Mumtaz City despite being in knowledge of the pendency of the suit against her.

Therefore, this court does not concur with the cause of non-appearance by the respondent/mother and to her extent, the impugned judgment does not suffer from any illegality.

The respondent instituted the suit against the petitioners/minors as well as the mother with the averments that property originally owned by late Naeem Akhtar Kiani was sold to the respondent and total sale price amounting to Rs. 2,775,000- was paid on the spot and possession of the suit property was delivered to the respondent, however, the sale deed could not be executed.

After the death of Naeem a request was made to the respondent/mother, in her capacity as legal heir of late Naeem to complete the transaction on her own behalf and on behalf of the minors and when the needful was not done, the suit was instituted.

The matter remained pending for filing of written statement when ex-parte proceedings were initiated and as a consequence thereof, ex-parte judgment and decree was passed.

An application for setting aside exparte judgment and decree was filed by the respondent/mother with the averments that her daughter got unwell and she could not vigilantly pursue the matter.

The trial court accepted the application of mother and the ex-parte judgment and decree in favor of the respondent was set aside against which the civil revision was filed by the respondent that was accepted, vide the impugned judgment and accordingly, order of the trial court was set aside.

During the pendency of revision petition filed by the respondent and application was also filed by M/s Mumtaz City with the averments that the respondent/mother has lawfully transferred the property in its favor. While passing the impugned judgment, the application filed by M/s Mumtaz City had also been dismissed.

Copyright Business Recorder, 2023