1996 PLP 1950 (SCMR)

MUKHTAR AHMED JUNEJO, J.

This is a petition for leave to appeal against an order dated 9-6-1993 passed by a learned Single Judge of the Lahore High Court in Writ Petition No.5713 of 1993. Respondents Muhammad Haleem and Abdul Jabbar filed a suit against petitioners 1 and 2 (Abdul Rashid and Muhammad Ismail), predecessor of petitioners 3-A to 3-H (Muhammad Siddique), and predecessor of petitioners 4 to 6 (Muhammad Rafique) for declaration that the respondents were owners of a part of a disputed house by way of private partition. Said suit was decreed in favour of the respondents on 18-6-1983 on the basis of report of a Commissioner slowing that special oath had been taken by Muhammad Siddique defendant in the suit on the Holy Qur'an. While decreeing the suit on 18-6 1983, the Trial Court also relied on statements of the parties recorded on 14-6 1983. Before decreeing of the suit the case against official defendants was withdrawn and their names were deleted. The suit was decreed against Muhammad Siddique, Muhammad Ismail and heirs of Abdul Rashid and Muhammad Rafique.

2. On 9-7-1984 an application was moved in the Trial Court on behalf of Abdul Rashid, Muhammad Ismail and legal heirs of Muhammad Rafique and Muhammad Siddique, under section 12(2), C.P.C. for setting aside of the judgment and decree dated 18-6-1983 on the ground that the same were obtained by fraud and misrepresentation because Muhammad Siddique was too old on 18-6-1983 to hear anything while Abdul Rashid was insane under guardianship of Muhammad Khalid and he and Muhammad Ismail and others were not present before the Court when respondents obtained the judgment and decree. Said application was heard by a learned Senior Civil Judge, who dismissed the same on 19-1-1993. Said order dated 19-1-1993 was challenged by way of Civil Revision in the District Court, Toba Tek Singh, where a learned Additional District Judge dismissed the same on 8-5-1993. The order dated 8-5-1993 was challenged in the Lahore High Court in Writ Petition No.5713/9. Said Writ Petition was dismissed in limine by a learned Single Judge under the impugned order dated 9-6-1993. Hence this petition.

3. Mr. Muhammad Aslam Chaudhry, learned counsel for the petitioners argued that the respondents had obtained the decree from the Trial Court on 18-6-1983 by fraud and misrepresentation as Abdul Rashid petitioner No.1 was insane and he could not have been asked to give his consent to the compromise. Examination of the record reveals that on the date of compromise decree viz., 18-6-1983, some of the parties were minors. It further appears from the record that the learned Trial Judge while decreeing the suit on 18-6-1983 on the basis of supposed compromise, did not comply with the provisions contained in Order XXXII, Rule 7, C.P.C. which are reproduced .4below:-- "

7. Agreement or compromise by next friend or guardian for the suit.- (1) No next friend or guardian for the suit shall, without the leave or 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 provisions reproduced above are mandatory in nature and non-compliance of the same would result in the compromise being voidable against all the parties other than the minor. We therefore, grant leave to appeal to consider the effect of non compliance of aforesaid provisions. A.A,./A-1271/S Leave granted.