1983 PLP 2376 (CLC)

Sh. Hamid Mukhtar for Petitioner. The petitioner in this case ‑is aggrieved by orders dated 4th December, 1978 passed by the learned Additional District Judge, Lahore, dismissing the revision petition presented by him against the orders dated 26th June, 1976 passed by Ch. Masud Akhtar, Civil Judge, Lahore.

2. The brief facts of this case are that Rashid Abmad and Ali Hussain filed a suit for pre‑emption of agricultural land purchased by the petitioner from Ghulam Muhammad, respondent No. 3, through a registered sale‑deed dated 16th May, 1964. It is admitted that the respondent No. 1 was a minor at the time of institution of the suit and as such respondent No. 2 acted as a next friend and guardian for filing the suit. The respondent No. 2 is stated to be a real paternal uncle of respondent No. 1 and according to the petitioner it was respondent No. 2 who was financing all the litigation for pre‑emption suit.

3. The petitioner contends that the respondent No. 2 compromised the suit with the petitioner and filed an application on 21st February, 1973 before Qazi Masood‑ur‑Rehman, Civil Judge, Lahore. The learned Civil Judge recorded the statement of the respondent No. 2 who was at the relevant time, acting as the next friend and guardian of respondent No. 1 and dismissed the suit as withdrawn on 21st February, 1973. It appears that on an application under section 151, C. P. C. presented by Rashid Ahmad, respondent No. 1, the learned Civil Judge came to the conclusion that he (respondent No. 1) being minor, the law applicable to compromise on behalf of minor should have been followed. He recorded the finding of fact that no statement on behalf of the respondent No. 1 was recorded' and that no leave for compromise was sought from the Court. He came to the conclusion that the proceedings violated the provision of Order XXXII, rule 7, C. P. C. and that the compromise would not bind respondent No.

1. The learned Civil Judge refused to accept the contention on behalf of the petitioner that respondent No. 1 was not a minor at the time of compromise. He sought strength from this argument to record conclusion that if he was a minor, how could it be possible to dismiss the suit regarding his right without recording his statement. Under the circumstances, he accepted the application under section 151, C. P. C. and ordered the restoration of the suit.

4. Aggrieved. by the orders dated 26th June, 1976 ordering restoration of the suit, the petitioner filed a revision petition under section 115, C. P. C. before the learned District Judge which came up for hearing before Mr. Muhammad Zaman Khan, Additional District Judge, Lahore and was disposed of by his order dated 4th December, 1978. The revision petition was dismissed.

5. The preliminary question which arises for consideration in this case is whether the petitioner is entitled to invoke the extraordinary jurisdiction of this Court when a comprehensive code like the Civil Procedure Code provides adequate remedies for redress of grievances of parties to a Civil litigation. The learned counsel for the petitioner was asked to show how the petition was maintainable in the context of unabridged right of appeal available to him under section 96 read with section 105, C. P. C. He sought an adjournment, which was allowed yet he has failed to satisfy me that he is entitled to question the order of the learned Additional District Judge by a petition under Article 199 of the Constitution. If any doubt existed as to the entitlement of the petitioner to question the correctness, validity or propriety of the orders of the civil Court on an appeal under section 96, C. P. C. the same is removed by the provisions of section 105, C. P. C. which expressly provides that where a decree is appealed from any error, defector irregularity in any order affecting the decision of the case, the same may be set forth as a ground of objection in the memorandum of appeal, the only exception being that 'of an order of remand from which an appeal lies but no appeal is filed. It is only in such case that the litigants would be precluded from disputing the correctness of the order of remand. I have no doubt that in the event of an adverse decision, the party shall be entitled to challenge the final decree, inter alia, on the ground sought to be advanced before me.' In view of the alternate remedy available to the petitioner, I decline to interfere and dismiss the writ petition in limine. M.Y.M". Petition dismissed,