P L D 1963 Azad J & K 23 (PLP)

ABDUL HAMID KHAN, J.‑This is a Letters Patent Appeal against the judgment of the learned Single Judge of this Court dated 10‑2‑1960. Amir Baz (defendant‑respondent No. 6) had filed a suit for possession by pre‑emption against Mangta appellant and respondents Nos. 2 to 6 on 3-9‑53 on behalf' of himself and as next friend of Sadiq minor (respondent No. 1). A compromise was effected with the permission of the trial Court on 18‑11‑53, Amir Baz withdrew from the suit which was dismissed. Thereafter Sadiq, the minor, through his mother Rajan Begum brought the present suit in the Court of‑ the Sub‑Judge, Mirpur seeking to avoid the compromise decree dated 28‑11‑53 on the ground that the com promise was to his manifest disadvantaged: The parties were put to the following issues :‑ (1) Whether the compromise on which the decree dated 18‑11‑1953 is based, was to the detriment of the minor, and if so, what' is it its effect on the suit ? (O. P. P.) (2) Whether the compromise was effected without the per mission of the Court, and if so, what is the effect of such a compromise on the present suit ? (O. P. P.)' (3) Relief ? The Sub‑Judge, Mirpur by his judgment dated 30‑10‑57 decreed Sadiq's suit on the ground that while granting leave to compromise the interest of the minor had not been kept in view. Mangta respondent went up in appeal before the District Judge, Mirpur who by his judgment dated 12‑3‑1958 upheld the decree of the trial Court. Mangta then filed a second appeal before the Single Bench of this Court but his second appeal too was dismissed by the learned Single Judge of this Court by his judgment dated 10‑2‑

60. Against this judgment of the Single Judge Mangta has now come up in appeal before the Division Bench. The learned counsel for the appellant mainly relies on section 147, C. P. C. and has argued that since the compromise in the suit was effected on behalf of the minor by the next friend of the minor with the express leave of the Court the minor could not avoid this compromise as the position of the minor was no better than that of a major. He has quoted A I R 1942 Lah. 205, in support of his contention. In reply it was stated that Order XXXII, rule 7 was enacted for the protection of the minors who were unable to look after their own interests and to whom the Courts stood in a quasi‑tutelary position and, therefore, the' duty of safe‑guarding the interests of the minors were thrown up on the Court who was to exercise a judicial discretion and see that the proposed compromise was for the benefit of the minors. It was contended that the Sub‑Judge while granting leave had not performed his duty and had acted in a perfunctory manner. A I R 1933 Lah. 468 ; A I R 1942 All. 85 ; A I R 1933 Mad. 890 ; A I R 1929 Bom. (sic) and A I R 1936 All. 811 were quoted by the learned counsel for the respondents in support of his contention. The provisions of law laid down in the C. P. C. which deal with the point in issue are contained in section 147, C. P. C. and Order XXXII, rule 7, which are being reproduced below for the sake of convenience :‑ Section 147, C. P. C.‑"In all suits to which any person under disability is a party, any consent or agreement, as to any proceedings 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 person were under no disability and had given such consent or made such agreement. Order XXXII, rule 7.‑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." Since the learned counsel for the appellant has mainly relied on A I R 1942 Lah. 205 in support of his contention we would examine this authority first before we discuss the provisions of section 147 and Order XXXII, rule

7. The question which was referred for decision to their Lordships of the Lahore High Court in A I R 1942, Lah. 205 was whether the negligence of a guardian‑ad‑litem was sufficient ground for setting aside a decree against a minor. It was to decide the point referred to them that their Lordships examined cases under three heads, firstly, cases in which either active fraud was alleged or the act of negligence was such as to raise a presumption of fraud and collusion, secondly, cases in which there was no effective representation of the minor and thirdly, cases in which it had been held that the leave of the Court had been improperly obtained. The case which had been examined under the 3rd head was A I R 1920 Lah. 408, which was decided on the ground that there could be no doubt that the compromise on behalf of the minors had been sanctioned under a mis apprehension of material facts, and that the decree based upon such a compromise was not binding upon them. From all this it is clear that the point involved in the case before us was not before their Lordships though they referred to it casually in the following manner :‑ "Mere negligence of the guardian is not of itself a ground for setting aside a consent decree against a minor, any more, than the fact that the compromise can be shown not to have been for the benefit of the minor," and, therefore, we do not consider this authority applicable to the present case. Besides we feel that while deciding the reference their Lordships of the Lahore High Court were influenced more by the terms of section 147, C. P. C. than the terms of Order XXXII, rule

7. We have perused the rulings produced by the learned counsel for the respondents and we feel that there is much force in the arguments advanced by the learned counsel for the respondents. The words without the leave of the Court, expressly recorded" appearing in rule 7, Order XXXII, are important and in our opinion by implication require the Court to carefully examine the compromise and consider the propriety of the same m the interest of the minor. If this had not been intended it would not have been made obligatory on the Court to grant the leave in express terms. Section 147, C. P. C. is to be read in conjunction with Order XXXII, rule 7 and where it is found that the Court has not exercised its mind judicially while granting leave to compromise but had acted in an arbitrary and a perfunctory manner the minor would not be considered as bound by the decree passed on the basis of such a compromise. A similar view was taken in A I R 1942 All.

85. In A I R 1933 Mad. 890 it was held that the general ‑principle of law was that an infant litigant was a ward of the Court and the Court had got the right and also the duty to see that the next friend acted properly and bona fide in the interest of the minor etc. In A I R 1933 Lah. 468, it was held that in allowing a compromise the Court was to exercise its judicial discretion as to the propriety, in the interest of the minor, of the proposed compromise. The same view was taken by the Single Bench of this Court in P L D 1959 Azad J & K

19. There is almost a consensus of opinion of the various High Courts that while granting leave under Order XXXII, rule 7 the Court should see that the proposed compromise is for the benefit of the minor though there is a conflict of judicial opinion as to the form and nature of the order granting leave to compromise. Even their Lordships of the Judicial Committee called for a certificate from the High Court as regards the propriety of a compromise on behalf of a minor before sanctioning the same, observing that there should be "a clear expression of opinion by proper Court in India that such a compromise is a beneficial one" to the minor. A I R 1922 P C 186 and A I R 1937 P C 35 may be referred to in this connection. We have now to see whether in the present case while granting leave the Sub‑Judge had applied a judicial mind before granting leave to compromise. The actual words recorded by the Sub- Judge while granting the leave are "because the minor will not suffer, permission is granted". These words, in our opinion, do not fulfil the requirement. What the Court is required to see is that the proposed compromise is for the benefit of the minor and this should be clearly stated by the Court while granting leave to compromise and as this was‑not done in the present case we area in agreement with the finding arrived at by the learned Single Judge who even considered the evidence produced by the parties to come to the conclusion that the compromise sanctioned on behalf of the minor was to his detriment. As there is no substance in the appeal the same is dismissed with costs. K. B. A./A. H. Appeal dismissed.