Law: Civil Procedure Code (V of 1908)

Section: 31

(a) Civil Procedure Code (V of 1908)---0. XLI, R. 31--Plea not discussed in of Court-­Presumption--Where certain plea was not discussed in of Court, presumption, held, would be that such point was not pressed before such Court. (b) Civil Procedure Code (V of 1908)-- ---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. (c) Civil Procedure Code (V of 1908)-- ---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. JUDGMENT 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…

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