P L D 1968 Lahore 1218 (PLP)

SARDAR MUHAMMAD IQBAL, J.‑

Mst. Sayani sold the land in dispute to Abid Ali, minor, for a sum of Rs. 550‑

00. Muhammad Siddiq respondent, filed a suit for pre‑empting The sale and alleged that the price paid was only Rs. 5,250.00 and t: at the sum of Rs. 5,550.00 was neither fixed in good faith nor paid. The suit was contested by the minor through his fatter, Siraj Din who was his guardian ad litem and alleged that the plaintiff‑respondent had not the superior right to purchase the land. It was further averred that he had made the improvements on tie land of the value of Its. 8,000.00. After the issues were framed, the respondent withdrew his objection as to the price of the land and admitted that the land had been sold to the minor for Rs. 5,550.00. Siraj Din, the guardian ad litem of the minor, admitted the superior claim of the respondent to purchase the land. In view of this admission, the only issue which had been left to be decided was as to whether an improvement had been made in the land in dispute. Before this issue could be decided, Mst. Safia Begum, mother of the minor, applied to the Court for being substituted as guardian ad litem in place of Siraj Din, the father of the minor, and she alleged that the interest of Siraj Din was adverse to that of his minor son. The learned trial Judge did not substitute her as the guardian ad litem. He, however, ordered that in case the suit was decreed, the amount to be paid by the pre‑emptor should not be given to Siraj Din. On behalf of the appellant, no evidence was led as to the improvements and consequently the suit of the respondent was decreed on payment of Rs. 5,550.00. Siraj Din, as the next friend of the minor, preferred an appeal which was dismissed by the learned Additional District Judge, Lahore at Sheikhupura. This is the second appeal, which again has been filed by Siraj Din on behalf of his minor son.

2. It is contended by the learned counsel for the appellant that Siraj Din as the guardian ad litem of his minor son had by admitting the superior claim of the respondent adversely affected the interest of the minor and that the trial Court should have removed him on the application of the mother of the minor. We felt some surprise at the contention. The mother of the minor after having made the application lost all interest in the case and she did not pursue the case of the appellant after that although it was clearly stated in the order of the learned Civil Judge that if she wished, she could be present in the Court to watch the interest of the minor. She made the allegation of negligence and dishonesty against Siraj Din, the next friend of the minor, and it is Siraj Din who is now alleging that her application against him should have been accepted. It is paradoxical that Siraj Din is pursuing the appeal on behalf of the minor and at the same time raising the objection that he had become disqualified to represent his case for the reason that he had acted against the interest of his minor son. The contention is frivolous.

3. On behalf of the minor vendee, it was alleged in the written statement that the plaintiff did not have superior right of pre‑emption: The guardian ad litem of the minor admitted before the Court and made a statement that the respondent had a superior right of pre‑emption. On the basis of his statement, the issue was decided in favour of the plaintiff: It was con tended on behalf of the respondent that the decision of this issue in favour of the plaintiff on the basis of the statement of the guardian ad litem of the minor is in the nature of a compromise and since the sanction of the Court for making the statement, as required under rule 7 of Order XXXII of the Code of Civil Procedure, was not obtained, the same should be set aside. The question which falls for determination is whether such a statement can be considered to be a compromise within the meaning of rule 7 of Order XXXII, C. P. C. The rule forbids the next friend or guardian to enter into any agreement or compromise on behalf of the minor without the express leave of the Court and by implication requires the Court to consider, in the exercise of its judicial discretion, the propriety of the same in the interests of the minor. To attract the provisions of rule 7, it is necessary that there should be a compromise entered into by the next friend or the guardian ad litem on behalf of the minor. The compromise is not explained in the Code of Civil Procedure, but it is obvious that the words "agreement or compromise" used in rule 7 of Order XXXII, refer to the same words used in Order XXIII, rule

3. When a suit is compromised, the Court is bound under rule 3 of Order XXIII to record the compromise and pass a decree in accordance therewith. In a case where the guardian ad litem abandons an issue, there is no A agreement or compromise recorded by the Court and no decree is passed in accordance therewith, and the question of the next friend or the guardian to obtain the leave of the Court does not arise at all. It was held by the Judicial Committee of the Privy Council in Lucmeswar v. Darbhangha Municipality (17 IA90) that a or guardian ad litem may abandon an issue in the course of the trial of the suit and the sanction of the Court is not requisite for that purpose. The abandonment or the giving up of an issue on the part of the next friend or guardian ad litem in the course of the conduct of the suit, therefore, does not 6 amount to a compromise within the meaning of rule 3 of Order XXIII of the Code of Civil Procedure and it is not necessary for the next friend or the guardian ad litem to obtain the sanction of the Court under the aforesaid rule for doing so.

4. We find no merit in this appeal which is dismissed with costs. A.E. Appeal dismissed.