P (PLP)

There was no mention of the suit instituted on behalf of Nikka, plaintiff. No. 1, except in the replication, and even then, in an indifferent manner, and by way of an objection raised in the written statement. On the pleadings of the parties the following issues were struck:‑

1. Were the next friends of the plaintiffs in the previous suits guilty of gross negligence and collusion with the vendee and therefore the decrees are not binding upon the plaintiffs ?

2. Was Umar Hayat competent to sell the share of Nikka plaintiff in the land ?

3. Was the sale effected for the benefit of the aforesaid minor ?

4. Is the suit land ancestral qua the plaintiffs ?

5. Was the sale for consideration and necessity or was it an act of good management ?

6. Did the plaintiffs derive any benefit out of the sale in dispute and how does it affect the suit ? The trial Court found all the issues in favour of the plaintiffs or against the vendee and decreed the suit. The 'District judge affirmed the decree. The vendee has consequently come in second appeal. Learned counsel for the appellant objected to the decree on the following grounds:

1. There was no prayer for the setting aside of the two previous decrees, against the plaintiffs. Those decrees should have been set aside in separate suits, or separate' Court‑fee should have been paid on the relief given in respect of the previous decrees.

2. The records of the previous cases have been treated as evidence without formal proof.

3. The sale of the property was an act of good management notwithstanding that the land purchased with the sale money was lost to pre‑emptors.

4. There is evidence that the minor has benefited by the sale and those benefits should be restored to the vendee. (1) Learned counsel for the appellant relied on A. I. R. 1936 All. 811 in which it is generally stated that a compromise decree, based on fraud, can be attacked in a review application or in a separate suit or by way of defence, and argued that a plaintiff, who had instituted a suit for a different purpose, could not merely plead in respect of previous decreed obtained against him that they were ineffective because they proceeded from fraud or gross negligence. The counsel relied on A. I. R. 1.924 Lah. 427 for the view that a previous decree is binding on the minor until it is set aside and that if a suit for setting, aside the decree is time‑barred, a fresh suit, based on the assumption that the previous decree can be ignored, will also be regarded as time‑barred. This is clearly not an authority for the view that where it is intended to avoid the effect of a decree alleged to be based on fraud or gross negligence, the only remedy available is the institution of a separate suit. The argument of the learned counsel for the appellant proceeds on the assumption that there existed two decrees against the plaintiffs. What actually happened in the two previous cases instituted on behalf of the plaintiffs by their next friends was that they made statements that they had compromised the cases and that they were withdrawing from the suits, which should consequently be dismissed. The prayer for dismissal was redundant and equally redundant was the order of the Court dismissing the suits. The plaintiff or the, plaintiffs in each case withdrew from the suit and it was consequently .a withdrawal under Order 23 Rule 1, Civil Procedure Code., The effect of such withdrawal, when permission is not given to bring a fresh suit, is that the plaintiff is precluded from instituting any fresh suit in respect of the same subject‑matter. Where, however, a compromise is entered into by the next friend of a minor in circumstances suggesting fraud or gross negligence, it is well settled that the minor has a substantive right to challenge it. See Nawab Ifitkhar Hussain Khan v. Beant Singh (A. I. R. 194.6 Lah. 233), a Full Bench case from which the following passage may be quoted with advantage :‑‑ " In England as I will show later on, it is a well established rule of common law that the minor can avoid a decree if it has been obtained on account of gross negligence of the guardian. The procedure in England may be different from the procedure employed for the purpose in India. But it is recognized in both countries that the right of a minor to avoid a decree is a substantive right. This substantive right cannot be taken away by the mere fact that in certain procedural matters the provisions of section 147 and Order 32 Rule 7 of the Civil Procedure Code have to be complied with ". The two suits having been withdrawn, there was merely an order dismissing them but there was no decree against the minors which it should have become necessary for them to seek to set aside. It was, therefore, quite in order for the plaintiffs to include no prayer in their suit for the setting aside of any previous decree. But even if a previous decree had existed against the minors, the fact that it had resulted from the withdrawal of the suit under order 23 rule 1, Civil Procedure Code, without permission to bring a fresh suit having been asked for or granted, would not have made the minors' position worse than it would have been if the decree had been obtained against them in the ordinary course, assuming that it had proceeded from fraud or gross negligence. It was held in Eshan Chundra Safooi v. Nunda moni Dassee (1884) (10 Cal.‑ 357) that when a person acting for a minor has fraudulently withdrawn the minor's suit, with out obtaining leave to bring a fresh suit, and by such with drawal an absolute statutory prohibition is imposed on the minor from bringing a fresh suit, it is open to the minor to relieve himself of the consequences of the fraud in one of three ways, viz. (1) by an application to the Court in the suit in which the withdrawal took place; (2) by a regular suit to set aside the judgment founded upon the withdrawal; or (3) by bringing a fresh suit for the same purpose, and setting up the fraud as an answer to the statutory bar. In Ram Sarup Lal v. Shah Latafat Hussein (1902) (29 Cal. 735) it was held that when the next friend of the minor withdraws from the suit; the minor can reopen it by an application for review or by a separate suit. This view was adopted by the Madras High Court in Doraswami Pilliai v. Thungasami Pillai (1904) (27 Mad. 377), where the order of withdrawal was set aside in revision. The Lahore High 'Court followed the two latter cases in Rajada v. Ghulla (A. I. R. 1919 Lah . 395) which was a suit for a declaration that a certain sale did not bind the reversionary interest of the plaintiffs, with an alternative prayer for pre‑emption. Two of the four plaintiffs were minors, and by a subsequent amendment at the instance of the two major plaintiffs the minors were excluded from the relief sought on the ground of pre‑emption, as they had no money. There then followed an application on behalf of all the plaintiffs for the withdrawal of the relief re lating to the prayer for a declaration, and a decree for pre emption was passed in favour of the adult plaintiffs. Subsequently, the minor plaintiffs brought another suit for a declaration, ignoring the previous suit and not even making a mention of it. It was held that inasmuch as no reason had been given by the next friend for withdrawing the suit on behalf of the minors, nor did he ask the Court to allow withdrawal subject to a permission for bringing a fresh suit, nor was the interest of the minors considered by the Court itself, the minors could ignore the previous suit and bring a fresh suit for the relief thus aban doned by their next friend. The contention about the payment of additional Court‑fee, based on the fact that there should be a prayer for an additional relief, thus loses force. (2) Reliance was placed on Phullu v. Ghulam Nabi (A. I. R. 1927 Lah. 69) for the view that it is not enough to send for a judicial file and then place it on the file of a case but that it should be proved properly in the present case, however, certified copies of the relevant portion of the file are exhibit ed. (3) On the same day when the present sale was conducted, Jalal and Umar Hayat, the vendors, purchased in their own names and in the name of Nikka minor, 33 kanals and 11 marlas of land and one‑half of a house in a village called Pindi Araian for Rs 7,

000. About a month later, on the 15th April 1943, the same parties purchased 32 kanals and 8 marlas of land for Rs. 5,

366. Thus 71 kanals and 6 marlas of land and one‑half share in a house were purchased for Rs. 12,

366. All this property, however, was lost to pre‑emptors. But whether it had been lost or not, it is not clear why it became necessary to alienate ancestral property in the neighbourhood of an important town for the purpose of buying non‑ancestral property in a different and perhaps distant place. The area no doubt is larger, but it is at the same time not so valuable as land in the neigh bourhood of the city. There is thus no evidence that the present sale was an act of good management. (4) The file does not show that any moneys which Umar Hayat and Nikka must have received on the success of the pre‑emption suits against them, were shared by them with the minor. The appeal is, therefore, dismissed with costs. K. M. A./A. H. Appeal dismissed.