P L D 2000 Lahore 172 (PLP)

12??????? The main grounds urged, inter alia, are: (a)??????? That a attorney who was holding the general power of attorney on behalf of the petitioners had agreed to refer the 'dispute to the arbitrator whereas, he had no authority or capacity of doing so. The attorney, therefore, acted in excess of his powers; (b)??????? that Arshad Ali, Kausar Parveen and Sughra Perveen were minors at the relevant time and, therefore, reference to the arbitrator without leave to the Court was violative of Order 32, Rule 7 of the C.P.C.

13. In this connection, the learned counsel for the petitioner states that the general power of attorney which was issued to the attorney did not specifically mention of a grant of power to him for referring the matter to the arbitrator.

14. According to the learned counsel for the respondents, the argument that the general attorney acted in excess of his powers is not available to the learned counsel for the petitioner. Because Mst. Naziran Bibi herself had submitted a joint request by marking her thumb‑impression for referring the matter to the arbitrator. In this connection, the learned counsel for the respondents referred to paragraph six of the judgment of the learned first Appellate Court, that this matter was thoroughly dealt with at that level and. was not accepted factually. The relevant excerpt is reproduced below in extenso:‑‑ "It is contended that the general attorney had no express authority to refer the matter to the arbitration and in this manner the reference to arbitration is illegal. In this respect the application dated 6‑2‑1984 making request for reference to the arbitration in the case has laid down that not only the general attorney has signed it but Mst. Naziran Bibi had also thumb‑marked it. In this view of the matter it is immaterial. whether general attorney has express authority for making reference to arbitration or not. The appellants' objection in this respect is, therefore, found meritless."

15. On the second point, the learned counsel for the respondent has said that this was a case where two major plaintiffs including Mst. Naziran had agreed to the reference of1the case to the arbitrators not only in the interest of the minors but also for themselves and had done nothing adverse to the interest of the minors.

16. Mst. Naziran was appointed as guardian‑at‑'litem of the minors in the suit which Was filed by the petitioners themselves and so a guardian was there to refer the matter on behalf of the minors to the arbitrator and no separate leave was required being a mere technicality. In this connection a further excerpt from para. 6 of the judgment of the first Appellate Court is also reproduced below in extenso:__ "Secondly some of the appellants are minors. Their interests for making reference to the arbitration has been protected by the appellants Nos. I and 2 who are majors and also equally interested as the minor's are. In other words the interest of the major appellants is not adverse to the interest of the minors. In the circumstances the possibility of guardian‑ad‑litem to proceed against the interest of the minors is overruled. In this case Mst. Naziran Bibi the appellant had acted on her and on behalf of the minors. Her interest is not at all closing with the interest of the minors. In the circumstances there is no probability of the minors' interest being jeopardised. Otherwise it is in evidence on the record that the registered sale‑deed Exh.P‑1 was executed against consideration of Rs.52,

000. The document carries presumption of truth. In the presence of so much evidence reference of the dispute to the arbitration was never carrying any instinct of injustice to the interests of the minors. It was rather in the interests of the minors that the matter should be disposed of expeditiously. Hence the award holding the sale‑deed Exh.P1 as genuine one is in consonance with the formal evidence on the record and hence reference to the arbitration was not at all illegal or responsible for miscarriage of justice between the parties. The application for reference to arbitration was made in the Court. The Court has granted that application and appointed the arbitrator as prayed for. In view of the circumstances of the case reference to the arbitration cannot be held as illegal and even against the interest of the minors. The learned trial Court has, thus, correctly held that the reference made to the arbitration was legal. The appellants have also contended that Mst. Naziran Bibi the appellant is an illiterate lady and she was kept in darkness about execution of the general power of attorney and reference to the arbitration. This allegation appears to be an afterthought. Reference to arbitration was made on 6‑2‑1984. The award was delivered on 28‑2‑1984. No application was moved by the appellants to bring this fraud or collusion into the notice of the Court and requesting the Court to order for revocation of the authority of the arbitrator before the award was announced. Afterwards the appellants have disowned the authority given to the attorney or herself having taken step for making reference to the arbitration. In the circumstances of the case the allegation is not believable and was rightly rejected by the teamed trial Court. Objection is also raised that Mst. Naziran Bibi was not rightly made the guardian‑at‑literm and that it was Muhammad Shabbir brother of the minors who was appointed the guardian of the minors. His name was omitted in the amended plaint. That allegation is also against the record. Mst. Naziran Bibi was appointed guardian‑ad‑litem of the minors being the real mother. She has no adverse interest qua the minors. In the circumstances her appointment as guardian‑at?litem was free from fault."

17. In this connection reference may be made to the case of Jaffar Abbas and 2 others v. Ahmad and another PLD 1991 SC 1131. In this case it was held: "It will be seen that Order XXXII, rule 7, C.P.C. prohibits the next friend or guardian of a minor in a suit, from entering into an agreement or compromise with regard to the suit without leave of the Court. In this behalf the position taken by the appellants is that the offer made by ~their Attorney and counsel, agreeing to the disposal of the suit, on the basis of the special oath of Iftikhar Hussain, which was accepted by the opposite side, amounted to an agreement falling within the mischief of Order XXXII, rule 7, that this rule is imperative; the agreement adversely affected the interest of the minor, but leave of the Court was not obtained. Thus according to the appellants the agreement so far as it related to the 'agreement of minor, was wholly illegal. The expression compromise' is not defined in the Code, but these words appear in the preceding part of the Code in Order XXIII, Rule

3. When some words are used in different parts of an enactment, unless there is variation in the context in which they occur, conveying a different intent, the presumption will be that they carry the same meaning. agreement or compromise' visualized by Order XXIII, rule 3 is such, that it is not contingent upon happening of another event, and upon the terms thereof a decree can straightaway be passed by the Court. Obviously, agreement in question is not the type of agreement, covered by Order XXIII, rule

3. In law, a reference to an outside party for information on the matter in dispute is receivable as an admission under section 20 of the Evidence Act 'against the party proposing the reference. This section provides: 'Statements made by persons whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.' The question as to whether or not the sale price of the property in dispute had been paid was within the knowledge of Iftikhar Hussain. It was a controversial issue between the parties. The suit was fixed for evidence. Instead of procuring a decision of the Court rendered ,,after recording evidence of both the sides, the appellants' attorney and their counsel through their statement chose to request the Court to make reference to Iftikhar Hussain requiring him to make a disclosure on Oath regarding the payment of the sale price and further agreed to be bound by such disclose. The role of Iftikhar Hussain was, therefore, in the nature of a reference. The fact that he had to make statement on Oath and he did make such a statement [admitting the existence of the fact as to the payment of the sale price, does not alter the character of his performance as reference. His statement was an evidentiary admission and a form of proof. The agreement by Nusrat Hussain and the counsel for the defendants with the respondents for decision of the suit on the footing of the statement of the referee, which is merely a mode of evidence, is not an 'agreement or compromise' of such a character that leave of the Court under Order XXXII, rule 7 is necessary. Over 90 years' ago, somewhat similar situation arose before Calcutta High Court in Sheo Nath Saran v. Sukh Lal Singh ILR 27 Cal. 229 and it was observed: "The offer of the guardian of a minor defendant on behalf of the minor to abide by the deposition to be given by a plaintiff on oath taken in a particular form under the Oaths Act, stands on a very different ground from an agreement or compromise contemplated by section 462, Civil Procedure Code of 1882, and that in such a case, the minor is bound by the consent of his guardian although given without the leave of the Court, provided that there is no fraud or gross negligence on the part of the guardian'." This judgment was followed in Muhammad Mahmud Chaudhry v. Behary Lal Saha and others AIR 1930 Cal. 463 wherein the consent given by a guardian ad litem of two minors of defendants without leave of the Court, to be bound by deposition on Oath given by a plaintiff was held binding on the minors. We may also reproduce herewith for approval the following observations of the Full Bench of the Punjab Chief Court in Malik Sohrab v. Anokh Rai 18 PR 1891 quoted in the impugned judgment: "The function of a next friend is to conduct the case of the minor in Court and, presumably, he is competent to do all that is usually incidental to the conduct of a suit in Court, without resorting to the Court at every step in the proceedings, though such a presumption may arise in respect to usual proceedings. It is difficult to suppose that the leave of the Court is to be sought before the next friend can enter into an agreement with a pleader to appear, plead and act, on behalf of the minor, or agree to an adjournment, or to admit particular facts without proof, under section 58 of the Evidence Act, or to admit the genuineness of documents, so as to dispense with formal proof, and there is certainly no ground for holding that the next friend must require the leave of the Court as to the witness to be called, on the documents to be produced, as evidence for the minor. On the other hand, there are agreements in reference to suit, especially these which tend to withdraw the suit from decision by the Court, to which the leave of the Court may properly be regarded as requisite such are, an agreement to refer to arbitration, or an agreement contemplated by section 375, Civil Procedure Code, whereby the suit is adjusted wholly or in part." On the rectitude of this judgment, in Nihla v. Bhagwana and another AIR 1936 Lah. 234, Willingness of the next friend of a minor to relinquish minor's claim without leave of the Court, should the opposite side make on oath, was considered merely a method of proof adopted by the next friend which did not suffer from any illegality. This view, was followed by Peshawar High Court in Niaz Ali v. Yasin and others PLD 1966 (W.P.) Peshawar

137. We entirely agree with the view expressed in these judgments,

18. Section 147 of the C.P.C. speaks‑ of the sanctity attached to an agreement which is made by a next friend or guardian of minor with the leave of the Court. It reads:‑‑ "

147. Consent or agreement by persons under disability.‑‑in all suits to which any person under disability is a party, any consent or agreement, as to any proceeding shall, if given or made with the express leave of the Court by the next friend or guardian for the suit, have the same force and effect as if such persons were under no disability and had given such consent or made such agreement." Whereas Order XXXII of the Civil Procedure Code lays down the procedure in suits by or against the minors and those of unsound mind. These provisions of the Code provide a special protection to the minors and those in disability. According to its rule 4, any person who is himself of sound mind and is a major may act as a next friend of a minor or guardian provided he has no interest adverse to the minor. Order XXXII, rule 7 relates to an agreement by the next friend or guardian on behalf of the minor in a suit. It says:‑‑ ... ... (1) 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. (2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor," The. purpose of Order XXXII, rule 7 of the Civil Procedure Code, in imposing restriction on the powers of the next friend or guardian of a minor, to enter into an agreement or compromise on behalf of the minor, A without leave of the Court which is to be recorded expressly, is meant to protect the minor's interest in the suit being adversely affected by a wrongful act or negligence on the part of the next friend or guardian. While allowing leave as envisaged under rule 7, C.P.C., a Court has to bear in mind, the rights of the minors. It has to see as a parent of the minor that the compromise is beneficial to him. The principle of this rule extends to the appeals. It is not essential for a Court to write in so many words that agreement was of benefit to the minor. The record should show that a leave was in fact granted and once a compromise is allowed with the leave of the IC Court, this becomes binding on a minor until fraud is shown.

19. In this particular case, the interest of the minors and the adults with them was identical. Their mother Mst. Naziran was a party in the case and had agreed to the reference of the case to the arbitrator not only in the interest of the minors but also for herself. There is no accusation against her for having done anything adverse to the interest of the minors. Therefore, in the circumstances of this case, one does not find any adverse effect on the rights of the minors which were being fully protected by the major plaintiffs.

20. After hearing the learned counsel for both the sides, this Court does not find any merit in this revision petition for the exercise of its visitorial jurisdiction. The revision petition is dismissed. Q.M.H./M.A.K./N‑159/L ?????? Revision dismissed.