P L D 1963 Azad J & K 59 (PLP)

This is a revision petition against the order of the Sub -Judge, Bagh dated 7‑11‑62 by which the petitioner's review petition against the judgment and decree dated 2‑6‑62 was dismissed. The facts giving rise to this revision petition are that Said Muhammad deceased vendor sold the suit land comprising khasras Nos. 1014, 1325, 1326 and 1021 measuring 33 kanals 5 marlas situate in village Thub, Tehsil Bagh for an ostensible consideration of Rs. 6,500 in favour of Faqar Din respondent by a sale‑deed registered on 9‑10‑

59. Sohbat Ali Khan respon dent and Abdul Hamid and Abdul Khaliq minor petitioners through their next friend Sohbat Ali Khan brought a suit to pre‑empt the sale. Sohbat Ali Khan is a step‑brother of the minors and all three are nephews of the vendor. It was alleged in the plaint that the sale was actually made for Rs. 1,500 and that the market value of the suit land was also Rs. 1,

500. The suit was proceeding in the trial Court when on 2‑6‑62 Sohbat Ali Khan plaintiff compromised with Faqar Din vendee and together with the compromise deed made an application to the trial Court for obtaining leave to effect the compromise. The leave was granted and a decree passed in accordance with the compromise. By this compromise the plaintiffs were granted a decree for 5 kanals out of survey No. 1326 which measures 33 kanals 10 marlas. The total acreage of the suit land is 66 kanals 11 marlas in which the vendor possessed a one half share. The decree was obviously given in favour of the plaintiffs without payment of any pre‑emption money. On 1‑7‑62 Abdul Hamid and Abdul Khaliq minor plaintiffs through their next friend Feroze Din maternal uncle filed a review petition in the trial Court. The learned Sub‑Judge by order dated 7‑11‑62 rejected the review petition as being not maintain able. The learned Sub‑Judge was of the view that Feroze Din had no right to bring a review petition on behalf of the minors. The learned Sub‑Judge also held that in his opinion no damage had been done to the minor's interests and further that a separate suit was the remedy for setting aside the compromise 'decree. The minors have now come up in revision before this Court. The learned counsel for the minor plaintiff petitioners relies on Order XXXII, rule 7 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. Sohbat Ali Khan cited in his application for leave for effecting the Compromise with the vendee that the minors were not in a position to pay in the pre‑emption money, therefore tatting 5 kanals from the vendee, he wants to give up the suit. The order of the Court recorded on the same date i.e., 2‑6‑62, reads:- "This application is accepted. In case of a compromise the minor plaintiffs do not stand to loose anything by this compromise. The plaintiffs are not in a position to pay pre‑emption money, therefore, permission to compromise is granted. (Sd.) (A. Samand). 2‑6‑62." The statement of Sohbat Ali Khan was also recorded on 2‑6‑62 in which he stated that he had compromised with the defendants and prayed that in accordance with the compromise a decree for 5 kanals out of survey No. 1326 be passed in favour of the plaintiffs and that the plaintiffs given up the rest of their suit because they are not in a position to pay the pre‑emption money. The costs have been given up and that the minor plaintiffs would not suffer any loss by this compromise. It has been argued by the learned counsel for the petitioners that it had not been found as a fact by the trial Court before granting leave to compromise that the compromise was for the benefit of the minors. His contention is that to say that the minors do not stand to loose anything or to suffer by the compromise is not the same as to say that the compromise is for the benefit of the minors. On the other hand it is argued by the learned counsel for the vendee respondent that the compromise was effected for the benefit of the minors and the Court had expressly re corded its leave. His contention is that even if it could be said that at the time of granting leave, the trial Court had not recorded an express finding that the compromise was for the benefits of the minors it had recorded such a finding while deciding the review petition. I have gone through the order passed on review. The learned Sub‑Judge's approach again in this order to the benefit of the minors is negative. He has written that his opinion is that the plaintiffs have not suffered by this compromise. The, learned counsel for the petitioners has cited P L D 1963 Azad J & K 23, which is a Division Bench case. It has been laid down in this ruling that Order XXXII, rule 7 requires the Courts to carefully examine compromise, consider propriety of same in interest of minor and to declare in clear words that compromise is beneficial to minors‑Court granting leave recording only "because the‑'minor will not suffer, permission is granted"‑Sanction given to compromise held, not proper and the minor was not bound by the decree passed on the basis of such compromise. The learned counsel has also cited P L D 1959 Azad J & K

19. It has been laid down in this authority that the Court should before granting leave exercise Judicial discretion as to the propriety of the compromise in the interests of the minors and the Court must have materials before it to satisfy its mind that the proposed compromise is for the benefit of the minors. No compromise involving an apparent surrender of the infant's right ought to be sanctioned by Court unless the Court is satisfied that the proposed arrangement is for the benefit of the minor. No hard and fast rule can be laid down as to what particular material a Judge may call for before being satisfied that the com promise is in the interest and for the benefit of the minors. It is a matter for the exercise of judicial discretion in each case. I have to see if the learned Sub‑Judge had exercised a judicial discretion in granting leave to compromise on behalf of the minors. The reason given in the petition for obtaining leave and the rea sons recorded by the trial Court while granting leave is that the minors cannot pay the pre‑emption money. The trial Court had nothing before it to hold like this except a bare statement of Sohbat Ali Khan plaintiff who was effecting the compromise with the vendee. It was alleged in the plaint that the sale had been made in fact for Rs. 1,500 and that the market value of the suit land was also Rs. 1,500 though in order to defeat the right of pre‑emption the price entered in the sale‑deed was Rs. 6,

500. It should be remembered that Rs. 1,300 had been deposited into the Court as one‑fifth of the purchase price. If the plaintiffs could pay Rs. 1,300 as one‑fifth of the purchase price I wonder if they could not pay the rest of the pre‑emption money. The learned Sub‑Judge while examining Sohbat Ali Khan should have ascertained from him why he had brought the suit for pre emption if the plaintiffs were not in a position to pay the pre emption money. The learned Sub‑Judge did not try to satisfy his conscience that the compromise was for the benefit of the minors. It has been stated at the bar and admitted by the vendee that one of the minors is quite of a mature age and that their father is also living. The trial Court should have issued notice to the plaintiffs and their father in order to ascertain and to be satisfied that the plaintiffs were really not in a position to pay the pre‑emption money. It has been held in some cases that an affidavit by the guardian setting forth the terms of the compromise and how they are beneficial to the minors should be filed while there are other cases wherein it has been held that there should also be an opinion of the counsel or a statement of the counsel at the bar that the compromise is a fit and proper one to be sanctioned in the interest of the minors (A I R 1941 All. 431, A I R 1929 Born. 350 D.B., A I R 1930 Cal. 539 D.B., A I R 1935 Sind 95 D.B., may be referred to). Minors are supposed to be wards of the Courts and while sanctioning any compromise on their behalf the Courts have to be on their guard and satisfy their conscience that the proposed agreement or compromise is for the benefit of the minors. The Privy Council in a couple of cases reported as A I R 1922 P C 186 and 1937 P C 35, when called upon to grant leave to compro mise on behalf of the minors, called for a certificate from the High Court concerned that the proposed compromise was really in the interest and for the benefit of the minors. The learned Sub‑Judge made no enquiry whether the com promise was for the benefit of the minors and he had no material before him to say that the compromise was for the benefit of the minor except the statement of Sohbat Ali Khan the next friend about whom it is alleged that he had accepted Rs. 500 from the vendee. My opinion in the circumstances is that the learned Sub‑Judge had not exercised his discretion judicially. Now I take up the point whether Feroze Din was competent to move this Court in revision. It has been argued by the learned counsel for the vendee‑respondent that it was Sohbat Ali Khan the original next friend who could move this Court in revision and that Feroze Din was not so competent. He has referred to my judgment reported as P L D 1959 Azad J & K 19, in which it has been recited at the foot of page 21 that Feroze Din acting as a next friend of the minor went up in revision before the High Court and my learned brother Abdul Hamid Khan, J. by order dated 7‑12‑57 held that though the revision was competent yet Feroze Din being not party to the compromise the order could not be set aside unless Mst. Amir Qulli a necessary party ques tioned the order. The learned counsel's contention is that in view of this order of Abdul Hamid Khan, J., Feroze Din next friend in the present case before me is not competent to move the Court in revision and that it was only Sohbat Ali Khan the original next friend in the suit on behalf of the minors who could move the Court in revision. The learned counsel concedes that if it be held that the trial Court has not exercised judicial discretion in granting the leave to compromise on behalf of the minors a revision is competent but his contention is that it is the next friend who effected the compromise that could move this Court in revision. I am in respectful disagree ment with my learned brother when he says that the next friend, effecting a compromise on behalf of the minors alone is competent to move this Court in revision, for setting aside the compromise decree. The real party is not the next friend but the minor and it is his interest that has to be looked into. If the right of moving the High Court in revision for setting aside a compromise decree which is not for the benefit of the minor is given alone into the hands of the next friend effecting the compromise, it would be a denial of such right. Obviously, that next friend is going contrary to the interest of the minor and he would be reluctant to come forward and move this Court in revision. If it is alleged on behalf of the minors that their next friend had effected a compro mise which was not to their benefit and bad injured their interest my opinion is that anybody else acting as a next‑friend of the minors can move this Court in revision. Sohbat Ali Khan has obviously injured the interests of the minors. The trial Court should make an enquiry whether it is desirable or not to remove Sohbat Ali Khan and appoint Feroze Din as the next friend of the minors. It was also argued by the learned counsel for the respon dents that Feroze Din was not competent to move the trial Court in review on behalf of the minors since he was not a party to the suit. It was also contended by the learned counsel that this revision petition had been filed against the order passed in review though he conceded that the revision petition can be considered as revision petition against the original compromise decree. I am treating this revision petition as one against the original compromise decree. It was held by me in P L D 1959 Azad J A K 19, that a petition for revision was competent where compromise had been entered in on behalf of minors with leave of the Court granted under Order XXXII, rule 7 provided the Court had not exercised a judicial discretion in granting such leave. Following this authority I hold that revision petition is competent since I have already held above that the learned Sub‑Judge had not exercised a judicial discretion in granting leave to compromise on behalf of the minors. As regards the finding of the trial Court and contention of the learned counsel for the respondents that a separate suit is the remedy, for the minors, I may draw their attention towards an ‑unreported case of our own High Court which is Civil Misc. Appeal No. 26 of 1957 instituted on 9‑3‑1957 and decided on 15‑7‑1957 entitled Mst. Afsar Bibi v. Mst. Fatima Jan in which Ch. Niaz Ahmed, J. held that the minor's remedy, against an order passed under Order XXXII, rule 7, C. P. C. where leave had been granted to enter into a compromise on behalf of the minors was not only by way of a separate suit or review petition but that a revision petition against such an order was also competent. Accepting the revision petition the compromise decree dated 2‑6‑62 is set aside and the case remanded back to the trial Court for proceeding according to law. K. B. A. Petition accepted.