2002 PLP 3366 (YLR)

Issues: (1) Whether the suit is not maintainable in its present form? OPD (2) Whether the plaintiff has got no cause of action and locus standi to file this suit? OPD (3) Whether the plaintiff is estopped by her words and conduct to file this suit? OPD (4) Whether the suit is incorrectly valued for the purposes of court‑fee and jurisdiction, if so its effect? OPD (5) Whether the plaintiff is owner in possession of the suit‑land and the impugned mutation of sale No.24 dated 6‑7‑1987 is based on fraud, collusive, without jurisdiction consideration, fictitious and against the law and facts and as such, in effective qua the rights of the plaintiff? OPP (6) Whether the suit is vexatious and as such the defendants are entitled to recover special costs under section 35‑A, C.P.C? OPD (7) Relief.

2. The learned trial Court dismissed the suit vide judgment and decree dated 19‑9 1991. Respondent No.1 being aggrieved filed an appeal before the District Judge, Khushab. During the pendency of appeal, the matter was settled between the parties vide Compromise Deed Exh.C‑1 which is attached with the revision petition at page No.73. The learned District Judge after recording the statement of the parties and Advocates, accepted the appeal vide judgment and decree dated 10‑2‑1992 in terms of the agreement/compromise arrived between the parties vide Exh.C‑

1. The petitioner being aggrieved, filed this revision petition.

3. The learned counsel of the petitioner submits that the learned First Appellate Court was erred in law to accept the compromise in violation of the Order 32, rule 7, C.P.C. He further submits that respondent No.2 without consent of the petitioner executed a compromise deed with respondent No.1. He further submits that respondent No.2 contested the elections of Local Bodies Council, therefore, for the sake of his elections. he had executed an agreement with respondent No.

1. He further submits that Mustafa Khan and Muhammad Hassan defendants Nos.4 and 5/petitioners Nos. 3 minor at the time when respondent No.1 had filed a suit against the petitioner and respondents Nos.2 and 3 as is evident from title of the plaint which is attached with revision petition as Annexure A. He further submits that respondent No.2 executed a compromise deed with respondent No.1 against interest of the minors, therefore, same is liable to be set aside. He further submits that during the pendency of appeal, the petitioner No.3 Mustafa Shah had become major as is evident from his National Identity Card secured by him from the competent authority under the provision of Registration Act. He further submits that compromise deed is only signed by respondent No.2 and identified by Raja Muhammad Sharif, Advocate. He further submits that the petitioner did not know about the tiling of appeal before the First Appellate Court by respondent No.

1. The petitioner did not engage any counsel on their behalf and service of the petitioner was not effected, therefore, the impugned judgment and decree of the First Appellate Court is the result of misreading and non‑reading of the record and is in violation of mandatory provision of law.

4. The learned counsel of respondents supported the judgment of the First Appellate Court. He further submits that since the impugned decree was passed by the consent, therefore, the revision petition is not maintainable. He further submits that this Court has no jurisdiction to record evidence at revisional stage. He further submits that the petitioner did not attach a single document alongwith revision petition to show that petitioner No.3 has attained the age of majority. He summed‑up his argument that in response to the impugned judgment, the possession of the land in‑question was delivered by the petitioner and respondents Nos.2 and 3 on 31‑8‑1992 and in this regard, Mutation No.36 was sanctioned by the competent Authority on 31‑3‑1992.

5. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record myself.

6. I would like to decide the preliminary objection of the respondents' counsel that the revision petition is not maintainable as the impugned judgment and decree was passed by the consent of the parties. It is settled principle of law that no appeal/revision lies against the consent or compromise decree, yet this Court in exercising of his powers under section 115, C.P.C. has powers to examine the illegality of the compromise order as per principle laid down by the Honourable. Supreme Court of Azad J&K in case "Muhammad Shakeel Khan v. Muhammad Riaz Khan, and others (PLD 1983 Azad J&K 13). It is also settled principle of law that where the compromise is bad in law, executed in derogation of the mandatory provision of Order 32, rule 7, C.P.C. Court is duty bound to apply its independent mind to watch the interest of the minor. Appellate Court should come to rescue the minors as per principle laid down by the Honourable Supreme Court reported as (PLD 1986 SC Azad J&K. 120) Abdul Majid's case. It is also settled principle of law that if the Courts below in breach of some provision of law commit some error or procedure in the trial which is material in that eventuality, it may have affected ultimate decision then, this Court under section 115, C.P.C. is duty bound to rectify that illegality or material irregularity while exercising powers under section

115. C.P.C. In arriving to this conclusion. I am fortified by the following judgments:‑‑ Arif Yazdani and other v. Sh. Abdus Salam, etc. (PLD 1957 (W.P) Lahore 983), Abdul Hamid and others v. Faqar Din, etc. (PLD 1963 Azad J&K. 59) and Muhammad Irshad. v. Nura (PLD 1967 Azad J&K 93).

7. It is better and appropriate to reproduce the compromise Exh.C‑1, statements of the parties as well Advocates and operative part of the impugned judgment to resolve the controversy between the parties:‑ "A compromise has been effected between the parties. A written compromise Exh. C‑1 has been filed in the Court. Statements of the appellant, respondent No. 1, guardian ad litem of respondents Nos.4 and 5 and learned counsel for the respondent, have been separately recorded. Taking into consideration the facts of this case, this compromise is held to be in the interests of minors because it will save them from prolonged litigation. This compromise is, as such accepted. This appeal is accepted. The judgment and decree appealed against, is set aside. The main suit is decreed in accordance with the compromise Exh.C‑1 which will form a part of the decree. The parties are left to bear their own costs in the circumstances of this case."

8. The aforesaid operative parts clearly reveal that the Court has granted relief in terms of compromise, arrived at between the parties and also kept in mind interest of the minors which is borne out from the compromise deed and statements of the parties It is pertinent to mention here that father of the minors had also given statement on behalf of the minors as is evident from aforesaid statement which is duly supported by the statement of the Advocate of the petitioner and respondents Nos. 2 and

3. The Order 32, rule 7 casts duty upon the Court to protect the minors' rights in the suit from being adversely affected by negligence or wrongful act of the guardian. It is also settled principle of law that while allowing leave, the Court should bear in mind to see the interest of the minor and see that the compromise is beneficial to the minors, where the interest of the minors and adults defendants, are identified. The respondents are identical one of whom is his brother and others are also nearest relation particularly this fact was accepted by natural guardian i.e. father of the minors in the absence of allegation, negligence or collusion with other side leave of the Court, was not necessary as per principle laid down by the Honourable Supreme Court in case Jaffar Abbas and 2 others v. Ahmad and another (PLD 1991 S.C. 1131). In the present case as mentioned above, the compromise was executed between the parties to short the litigation between themselves, therefore, it is in the interest of minors that is why their father accepted the compromise arrived at between the parties, in his statement. It is settled principle of law that general allegations of mala fidely are not sustainable in the eyes of law. In arriving to this conclusion, I am fortified by the following judgments:‑‑ PLD 1974 SC 151 Saeed Ahmad Khan's case PLD 1990 SC 1092 Aman‑ullah's case. The last contention of the learned counsel of the petitioner that petitioner No.3 had attained the age of majority at the time of execution of compromise, has also no force as the petitioner did not attach NIC's copy with the memorandum of the revision petition, therefore, the general allegation is not sustainable in the eyes of law.

9. The learned counsel of the petitioner failed to point out any illegality or irregularity, committed by the First Appellate Court in the impugned judgment and decree as per principle laid down by the following judgments:‑‑ Board of Intermediate and Secondary Education. Lahore v. Syed Khalid Mahmood 1985 CLC 657 and N.S. Venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board Madras (P.L.D. (sic) Privy Council 26).

10. In view of what has been discussed above, this revision petition has no merit and the same is dismissed with no order as to costs. H.B.T./I‑112/L Revision dismissed.