P L D 1985 Lahore 2'73 (PLP)

(2) Whether Bir Din deceased was the owner of the suit land? O. P. D. (3) Whether the land in dispute has been mutated to Mehar Din instead of Bir Din due to inadvertence? O. P. P. (4) Relief.

2. Learned tried Court after recording the evidence found all the issues against the plaintiffs and consequently dismissed their suit vide judgment dated 26-4-1980.

3. Plaintiffs i. e. Mst. Naziran Bibi and respondents Nos. 3 to 10 filed an appeal to challenge the aforesaid judgment and decree. During the pendency of the appeal, Mst. Naziran Bibi died and the present petitioners being her legal heirs were impleaded as appellants on 3-3-1981.

4. On 14-2-1983; dispute was sought to be resolved through special oath on the Holy Qur'an. Khushi Muhammad respondent No. 4 herein who was one of the appellants made a statement on his own behalf and as a special attorney of the remaining appellants that if Muhammad Yusuf son of Mst. Fatima Bibi respondent No. 1 made a statement on oath on the Holy Qur'an that Mehar Din had purchased the land in dispute and had paid the instalments therefor, the appeal be dismissed. Respondent No. 1 accepted this offer .and Muhammad Yusuf, who was present in Court took the proposed oath which fact is borne out from the following statement of Khushi Muhammad respondent No. 5 :

5. In view of the afore-mentioned statements and the fact that Muhammad Yusuf had taken the proposed oath, learned Additional District Judge dismissed the plaintiffs' appeal by way of compromise vide his order dated 14-2-1983 which is reproduced below in extenso :

6. Out of all the plaintiffs, only the petitioners who are the legal heirs of Mst. Naziran Bibi deceased plaintiff challenged the aforementioned order and decree of the learned Additional District Judge.

7. I have heard the learned counsel for the petitioners and respondent No. 1 and have also perused the record.

8. Learned counsel for the petitioners assailed the impugned order on two grounds. His first contention was that Khushi Muhammad respondent who had made the statement before the lower appellate Court on behalf of other appellants purporting to act as their special attorney had no authority to act on their behalf as they never appointed him as their special attorney. This contention is correct. Record does not show that the said Khashi Muhammad was ever empowered to act on behalf of other appellants viz. the present petitioners and respondents Nos. 3 to

10. Learned counsel appearing for respondent No. 1 also did not dispute this position. He, however, submitted that according to the order sheet, parties and their counsel were shown to be present on 14-2-1983 when the appeal was sought to be decided on special oath. This, according to the learned counsel, showed that other appellants were also present on that date and they should, therefore, be deemed to have agreed to the offer of special oath made by Khushi Muhammad. The premises on which this argument is based are ill-founded. Presence of the parties and their counsel is, no doubt, recorded on the order sheet but this does not justify the conclusion that all the appellants were actually present on that date. Such a conclusion is rather negated by the fact that Khushi Muhammad appellant purported to act as special attorney of other appellants. In this context, therefore, presence recorded on the other sheet would only show that Khushi Muhammad one of the appellants and the counsel for the appellants on the one side and respondent No. 1 and her counsel on the other side were present. Thus, I find no substance in the submission made by the learned counsel for the respondents. Offer of special oath was made by only one appellant and, as such it could not form a valid basis for further proceedings culminating in the dismissal of the appeal as a whole. . Learned Additional. District Judge did not look into this aspect of the matter and dismissed the appeal without satisfying himself whether Khushi Mtahammad,9 appellant had the necessary power or authority to act on behalf of other appellants. This omission on the part of the learned Additional District Judge resulted to illegal dismissal of the appeal. Impugned order and the decree of the learned Additional District Judge are, therefore, liable to be set aside on this ground alone.

9. Second ground vehemently pressed into service by the learned counsel for the petitioners was that the appellants before the learned Additional District Judge included two minors viz. petitioners Nos. 1 and 2 herein but the learned Judge did not consider whether or not the so-called agreement/ compromise to get the appeal decided on special oath was in the interest of the minor-appellants.' Learned counsel argued that as the interest of the two minors was involved in the appeal, the agreement in Question required the prior permission of the learned Additional District Judge which was not obtained and that being so, the impugned order is violative of Order XXXII, rule 7, , . P. C. which provides that before the next friend of the minors enters into an agreement, he must obtain the permission of the Court. In support of his submission, learned counsel placed reliance upon Ghulam Abbas err. v. Fagir Hussain (1983 C L C 99). In the precedent case, Faqir Hussain, respondent pre-emptor made a statement before the First Appellate Court making an offer to the effect that if Allah Mahi, one of the appellants-vendees stated on oath by holding the Holy Qur'an in hands that the sale price amounting to Rs. 4,50,000 was actually paid and no amount out of the same was returned, he i. e. the pre-emptor was prepared to pay the said amount to the appellants and the decree be amended accordingly. Allah Mahi made a statement showing willingness to take the proposed oath. Subsequently on that very day, a joint statement of respondent-preemptor, two of the appellants viz. Allah Mahi and Nazir Ahmad as also of the parties' counsel was recorded which was to the effect that Allah Mahi had taken the proposed oath and thus the matter was compromised and that the appeal should accordingly be partly accepted and decree be passed on payment of Rs. 4,50,000 in favour of the pre-emptor. Learned Additional District Judge accordingly allowed the appeal partly on the basis of the afore-said statement and passed a decree for possession .on payment of Rs. 4,50,000 in favour of respondent-pre-emptor. Judgment and decree of the learned Additional District Judge was challenged in this Court on the sole ground that Ghulam Abbas, one of the appellants was a minor but the learned Additional District Judge before passing the impugned judgment and decree did not consider as to whether the proposed compromise was for the benefit of the minor or not although it was obligatory for him to do so by virtue of the provisions of Order XXXII, rule 7, C. P. C. It was argued on behalf of the respondent that the agreement reached before the lower appellate Court did not amount to compromise within the meaning of Rule 7 of Order XXXII, C. P. C. and as such permission/sanction of the Court was not necessary. This contention was repelled and it was held "on merits, however, the contention rasied by the learned counsel for the respondent is devoid of any merit, inastnuch as in the circumstances of the present case there has been no abandonment of issue/ issues. The impugned judgment and decree are based on compromise pure and simple" Impugned judgment and decree were, therefore, set aside as the learned lower appellate Court had not taken into consideration the interest of Ghulam Abbas, minor appellant as required under Order XXXII, rule 7, C. P. C.

10. Learned counsel appearing for respondent No. 1 took up the position that the agreement to have the appeal decided on special oath was not in the nature of he compromise/agreement contemplated by Order XXXII, rule 7 C. P. C. but was only a special- method of proof and as such it did not require the sanction leave of the Court. Learned counsel relied upon Niaz 4/i v. Yasin and others (P D 1966 Pesh. 137) and Ahmad Khan and others v. Jaffar Abbas and others (1983 C L C 3043). In both these cases, it was held that an agreement to have the case decided. on oath of another person was not within the contemplation of Rule 7 of Order XXXII, C. P. C. but these cases as will be shown hereunder, are distinguishable.

11. In 1966 Peshawar 137, an application was moved on behalf of the minor by his next friend "for permission to decide the case on oath". Trial Court granted the permission holding that "the decision of the case on oath was in the interest of the minor". Having obtained this permission, next friend of the minor offered a special oath on the Holy Qur'an to the defendant who took the proposed oath and consequently the learned trial Judge passed a decree in'terms of the proposed oath which decree was maintained in appeal. Minor then filed another suit through his mother as his next t1tiend. Matter came to the High Court in second appeal and one of the contentions raised on behalf of the minor was that the decree in the earlier suit was not binding on him because the permission to decide that case on oath was granted by the trial Judge without proper application of mind to the question as to whether or not the compromise was in the interest of the minor. Learned Judge in the High Court; after appraising the material available on the record, repelled this contention by holding that "the learned trial Judge had applied his mind to the case and had come to the conclusion that the decision of the case on oath was in the interest of the minor". The learned Judge made an additional observation "the offer of oath in the previous suit was not, strictly speaking, a compromise, but a special mode of proof. The next friend of the minor had only suggested a particular mode of evidence, which could satisfy him regarding the passing of consideration and the valid necessity". It was, therefore, concluded that sanction under Order XXXII, rule 7, C. P. C. was not necessary. In 1983 C L C 3043, issues had been framed but evidence had not yet started when the defendants made an offer to get the case decided on special oath of one Iftikhar Hussain, a third person which offer was accepted oy the plaintiffs and the proposed oath was also taken. Learned trial Judge fixed a date for the payment of the amount by the defendants in accordance with the aforesaid agreement but before that date, the defendants made an application praying therein that "the agreement to get the suit decided on the oath of Iftikhar Hussain should not be given effect." One of the pleas taken in this application was that one of the defendants was a minor. Learned trial Judge rejected the application and on the failure of the defendants to deposit the amount within the period fixed, decreed the suit. Defendants took an appeal which was accepted by the learned District Judge on the ground that one of the defendants was a minor and the prior permission of the Court not having been obtained, the agreement to get the suit decided on oath of a third person was void as it was in violation of the provisions of rule 7 of Order XXXII, C: P. C. Order of the District Judge 'was set aside by this Court holding that the agreement afore-referred was not of the nature envisaged by rule 7 of Order XXXII, C. P. C: It was observed "quite obviously, the agreement or compromise referred to in the sub-rule has to be of nature which affects the substance of the dispute, and not which is of an incidental or procedural nature."

12. The afore-mentioned discussion shows that in both the cases cited on behalf of the respondent, the agreement to have the case decided on special oath was made during the pendency of the suit and that, too, before the start of the evidence and it was in these circumstances that it was held that the agreement provided only a special mode of proof and was not the one envisaged by Order XXXII, rule 7, C. P. C. In the present case, offer was made to have the appeal decided on special oath of a third person which offer cannot, in my view, be considered as an offer providing particular mode of evidence. Moreover, in 1966 Peshawar 137, permission was asked for and granted. Similarly, in Ahmad Khan v. Jaafa.- Abbas, learned trial Judge appears to have considered the question of the interest of the minor which is evident from the following observations :- 'There is another aspect of the matter also which seems to have been ignored by the learned District Judge. Before decreeing the suit of the appellants the learned trial Judge did consider whether the agreement was in the interest of the minor. It is to be observed that the respondents have not taken up the position before me that the finding of the trial Judge in this regard was open to question. Now sub-rule (1) of rule 7 does not specify the exact stage at which the guardian ad litem is to apply for the permission of the Court for entering into an agreement or a compromise on behalf of the minor. The permission can be granted, even after the agreement has been entered into. To hold otherwise may in many cases deprive the minor of the benefits of an agreement which is manifestly to his advantage. It is to be noted that an agreement which a guardian ad litem entors into on behalf of the minor is not ab initio void but only voidable. Thus, an agreement which is to the advantage of the minor can be given effect even though Court' permission was not obtained before entering upon it."

13. Even otherwise, the agreement in the present case read as a whole and particularly the statement of Khushi Muhammad reproduced in pare. ante conceding the dismissal of the appeal clearly shows that it-was compromise and was so treated even by the learned Additional District Judge himself as is apparent from the impugned order. That being so, that agreement/compromise in question which affected the rights @Lnd interest; of petitioners Nos. 1 and 2 could only be entered into by their next friend namely, petitioner No. 3, and that, too, after obtaining the permission o1 the learned Additional District Judge. Petitioner No. 3, as held above, was not a party to the agreement offered by Khushi Muhammad respondent nor was the Court's permission sought or granted. The agreement in question was, therefore, in clear violation of rule 7 of Order XXXII, C. P. C. which' provides that no next friend or guardian for the suit shall, without the leave of the Court, expressly, recorded in the. proceedings enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. This Rule forbid a next friend or a guardian to enter into an agreement or compromise on behalf of the minor without express leave of the Court. It further provide that an agreement or compromise entered into without the leave of the Court shall be voidable against all the parties other than the minors. This rule, in its terms, is applicable to the agreement /compromise entered into by next friend or guardian of the minor. In the instant case, agreement resulting in the dismissal of the appeal was entered into by Khushi Muhammad who admittedly. was not a next friend of petitioners Nos. 1 and

2. That being so, rule 7 afore-referred may not be strictly applicable to the present case but the principle of equity enshrined in this rule shall apply with full force. It was held in Arif Yazdani and others v. Sheikh Abdus Salam and others (P L D 1957 (W. P.) Lah. 983), although there is no statutory provision requiring the Court to watch the interests of the minor plaintiffs in such matters, but the principle is well-recognised and is based on general principles of equity, justice and good conscience that no act can be done affecting the person, property or estate of a minor without the express or implied direction of the Court. In para. 1353 of Commentaries on Equity, Jurisprudence by Story (Third English Edition 1920) it is stated that in all cases where an infant is a ward of Court, no act can be done affecting the person or property or state of the minor unless under the express or implied direction of the Court itself. It is also stated that once the Court has thus directly or indirectly assumed authority over the person or property of an infant as its ward it acts throughout with all the anxious care and vigilance of a parent ; and it allows neither the guardian, nor any other person, to do any act injurious to the rights or interests of the infant. In para. 1352 it is laid down that wherever an action is brought relative to the person or property of an infant, although he is not under any general guardian appointed by the Court, he is treated as a ward of the Court, and as being under its special cognizance and protection." The aforesaid principles were given effect to by a Division Bench of the Chief Court of Punjab consisting of Scott-Smith and Martinean, JJ. in Rajada and another v. Ghulla and others (59 P R 1919). Dealing with this question, their Lordships observed as follows : "This case may not strictly come within the terms of section 462 of the Code of Civil Procedure, because it is not proved that the defendants entered into any agreement or compromise with the next friend of the infant but it is within the scope of the general principle enunciated in Story's Equity Jurisprudence, section 1353. In all cases where an infant is a ward of Court, no act can be done affecting the person or property. or state of the minor, unless under the express or implied direction of the Court itself".

14. It is clear from the afore-said dictum that even in cases which) arc not strictly covered by rule 7 afore-referred, Courts are under a duty to watch the interests of the minors vigilantly in all matters pending before them in which interests of the minors are involved. In the present case, it is quite clear from the record and is not otherwise disputed that the learned Additional District Judge did not apply his mind to this aspect of the matter and did not consider the interests of the minor appellants before acting upon the so-called agreement/compromise and dismissing the appeal. It appears that the learned Judge was not even conscious of the face: that the appellants before him included two minors whose interests were also involved in the appeal.

15. Thus, viewed from whatever angle, conclusion is irresistible that the learned Additional District Judge acted illegally in dismissing the appeal on the basis of the special oath offered by Khushi Muhammad respondent. Impugned order and decree of the lower appellate Court is, therefore, liable to be set aside.

16. As the interest of the present petitioners and respondents Nos. 3 to 10 who were all appellants before the learned Additional District Judge is indivisible and cannot be split up, the impugned order is set aside in to with the result that the revision petition is accepted and the case remanded to the learned lower appellate Court for disposal of the appeal in accordance with law. Decision of the appeal having already been delayed, learned lower appellate Court shall decide the case within a period of three months. M. Z. M. Case remanded.