P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑

This order will dispose of Civil Revision Nos. 36 and 133 of 1951 as they arise out of the same order and can be conveniently disposed of by one judgment. In order to appreciate the points involved in these revision petitions it is desirable to set out the material facts in detail. On the 5th of February 1955, Khwaja Abdul Alim, father of the petitioners in petition No. 36 of 1957, and son of the petitioners in petition No. 133 of 1957 had brought a suit against the defendant‑respondent for rendition of accounts on the allegations that both of them had practised in partnership as Income‑tax Practitioners for a period of about five years, and as the partnership had been dissolved, the defendant who had been maintaining the accounts was liable to render accounts to him. The suit was resisted by the defendant on various grounds. On the pleadings of the parties, certain issues were framed with which we are not concerned in these proceedings. On the 25th of June 1955, which was the date fixed for the recording of the evidence of the parties, Sheikh Muhammad Hussain was appointed sole arbitrator at the instance of the parties and he was directed by the Court to send his report by the 25th of July 1955 on which date both the plaintiff and the defendant stated that they did not want their case to be decided by the arbitrator and accordingly' the suit was withdrawn from him and the 25th of August 1955 was fixed for the evidence of the parties. On that date, the plaintiff filed an application under Order XXIII, rule 3, Civil P. C., in which he alleged that the suit had been compromised by the parties and the defendant had given a writing to the plaintiff whereby he had agreed to pay Rs. 16,762‑14‑6 and had also agreed that the plaintiff could obtain from the Court a decree in terms of the compromise. He also alleged that on the 9th of August 1955 the defendant had tried to snatch that writing and in doing so he had torn a portion of it and consequently the plaintiff had filed a complaint under section 477, P. P. C,, against the defendant in the Court of the Additional District Magistrate. Multan, and had also produced the torn document before that Court. He prayed that the compromise may be recorded and a decree in terms of the compromise may be passed in his favour. The Court fixed the 22nd of October 1955 for filing a reply to this application: But in the meantime the plaintiff was murdered on the 29th of September 1955. He left his widow Mst. Surraiya Jabin, four minor children, namely, Arif Yazdani, Tariq Yazdani, Abid Yazdani and Gulnaz Jabin and his parents Sufi Muhammad Shafi and Mst. Nut Zainab, as his heirs, who, on an application made on that behalf by Sheikh Qadir Ahmad. Advocate were made parties to the suit as legal representa tives of the deceased plaintiff, and Mst. Surraiya Jabin being the mother of the minors was appointed their next friend. In reply to the application filed by Sheikh Abdul Alim under Order XXIII, rule 3, Civil P. C. the defend ant admitted the execution of the writing, but pleaded that the same had been obtained under undue influence and coercion and that in fact no compromise had been effected between the parties. On the 20th of December 1955, the following issue was framed by the Court :‑ Whether the defendant effected a valid compromise with Abdul Alim, deceased plaintiff in this suit ? If so, what is its effect on the present suit ? The burden of proving this issue was placed on the plaintiffs. While evidence was being led on behalf of the plaintiffs on this issue, the Court held on the 28th of April 1956 that the document in question was a bond and as it was not stamped the same was impounded. The case was then adjourned to the 29th of May 1956 for the remaining evidence of the parties in the light of the decision as regards the document. It may here be pointed out that Sheikh Qadir Ahmad, Advocate, who had been engaged by Abdul Alim deceased plaintiff, had been appearing oil behalf of the plaintiffs all along and there is nothing on the record to show that the power of attorney in his favour had beer cancelled by the plaintiffs. He was present on behalf of the plaintiffs when the last order was passed and the case was adjourned to the 29th of May 1956. But on the 29th of May .1956. Agha Ali Ahmad, Advocate, appeared before the Court and made a statement on behalf of the plaintiffs that they did not wish to pursue the application filed under Order XXIII. rule 3, Civil P. C., and the same may be dismissed and the suit be decided on its merits, The Court accordingly dismissed that application and adjourned the case to the 30th of May 1956, for arguments on a preliminary issue which had been added after the legal representatives had been brought on the record. Agha Ali Ahmad, Advocate, appeared on the 30th of May 1956, on behalf of the plaintiffs and the counsel for the defendant made a statement that he did not wish to press the preliminary issue which was accordingly decided against the defendant, The case was then adjourned to the 27th of June 1956 for the evidence of the parties on which date Agha Ali Ahmad, Advocate, again appeared on behalf of the plain tiffs and examined seven witnesses on their behalf. He was also present on the 28th of June 1956 when the evidence for the defendant was concluded. He argued the case on the 29th of June 1956 and the judgment was then reserved by the Court. On the 4th of July 1956. an application under sections 151 and 153, Civil P. C., was presented on behalf of the plain tiffs on the allegations that the counsel had not been authorised by them to withdraw the application filed under Order XXIII, rule 3, Civil P. C., and that at any rate he did not bring it to the notice of the Court that there were minor plaintiffs as well in the suit and consequently the Court was thus deprived of protecting the interest of the minor plaintiff's. It was also alleged that the withdrawal was against the interest of the plaintiffs, especially the minor plaintiffs. It was prayed that the proceedings be so amended that the plaintiffs may proceed with the application filed under. Order XXIII, rule 3, Civil P. C. This application was resisted by the defendant and the Court framed the following issues :‑ (1) Whether the application is competent ? (2) Whether the counsel of the plaintiff was not autho rised to withdraw from application under Order XXIII, rule 3 ? (3) If issue No. 2 is not proved, whether the said with drawal was not in the interest of` minor plaintiffs ? If so, what is its effect ? In support of this petition, three witnesses were examined on behalf of the plaintiffs and Agha Ali Ahmad, Advocate, was examined on behalf of the defendant who also appeared as his own witness. The Court decided issue No. 1 in favour of the plaintiffs, but gave its verdict against them on issues Nos. 2 and 3 and dismissed the petition. It is against this order that the minor plaintiffs have filed Revision Petition No. 36 of 1957 and the parents of Khwaja Abdul Alim deceased plaintiff have filed a separate Revision Petition No. 133 of 1957. These petitions were argued at length by the learned counsel for the parties. Mr. Ghias Muhammad, learned counsel for the minor plaintiffs, contended that Agha Ali Ahmad, Advocate, hid not been engaged on behalf of the minors and he had no authority to make a statement on their behalf and in fact he never acted on behalf of the minors when on the 29th of May 1956, he made the statement in Court that the plaintiffs did not wish to pursue the application made under Order XXIII, rule 3, Civil P. C. He also maintained that the power of attorney did not empower him to withdraw the application and at the time of the making of the statement he had not brought it to the notice of the Court that the interests of minors were also involved and the Court had not applied its mind to see whether the withdrawal was in the interests of the minors. He also argued that the Court could not have allowed the withdrawal of the application as it was against the interests of the minors. Mr. Bashir Ahmad, counsel for the petitioners in Revision Petition No. 133 of 1957, urged that Sufi Muhammad Shafi and Mst. Nur Zainab had also not authorised the counsel to withdraw the application. A preliminary objection was raised on behalf of the respondent that the High Court had no jurisdiction under section 115 of the Code of Civil Procedure to interfere with the findings arrived at by the Court below on issues Nos. 2 and 3 even if the findings were erroneous. This objection is based on the principle enunciated by their Lordships of the Privy Council in Raja Amir Hassan Khan v. Sheo Bakhsh Singh (11 I A 237) and Balakrishna Udayar v. Yasudaya Aiyar (44 I A 261), that a subordinate Court, if it had jurisdiction to decide a matter, does not act illegally or with material irregularity because it gives .a wrong decision in a matter which it is competent to decide. At this stage it seems desirable to refer to the latest decisions of the Privy Council as regards the scope of section 115 of the Code of Civil. Procedure. In N. S. venkatagiri Ayyangar and another v. The Hindu Religious Endowments Board (AIR 1949 PC 156 =PLD 1949 PC 26) their Lordships held as follows :‑ "Section 115, Civil P. C. empowers the High Court, to satisfy itself upon three matters. (a) That the order of the subordinate Court is within its jurisdiction ; (b) That the case is one in which the Court ought to exercise jurisdic tion ; and (c) that in exercising jurisdiction the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that it, by committing some error of procedure in the course of the trial which: is material in that it may have affected the .ultimate decision. If the High Court is satisfied upon those three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the subordinate Court upon questions of fact or law". In Joy Chand Lal Babu v. Kamalaksha Chaudhury and others (A I R 1949 P C, 239=P L D 1949 P C 114) while dealing with this question their Lordships observed :‑-- '' There have been a very large number of decisions of Indian High Courts on section 115, to many of which their Lordships have referred. Some of such decisions prompt the observation that High Courts have not always appreciated that although error in a decision' of a subordinate Court does not by itself involve that the subordate Court has acted illegally or with material irregularity so as to justify inter ference in revision under subsection (c), nevertheless, if the erroneous decision results in the subordinate Court exer cising a jurisdiction not vested in it by law, or failing to exercise a jurisdiction so vested, a case for .revision arises under subsection (a) or subsection (b), and subsection (c) can be ignored." The principle deducible from the aforesaid rulings, now seems to be firmly established that an erroneous decision on a point of law or fact by a subordinate Court cannot be revised by the High Court under section 115 of the Civil '.P. C., unless a question of irregular exercise of jurisdiction or non‑exercise of it or' the illegal assumption of it is involved on the basis of such an erroneous finding. Such an order can also be revised if the subordinate Court appears to have acted in the exercise of its jurisdiction illegally, that is, in breach of some provision of law or with material irregularity, that is, by committing some error of procedure in the trial which is material in that it may have affected the ultimate decision. It will thus be seen that an error of law or fact by which a Court invests itself with jurisdiction which it has not or fails to exercise jurisdiction with which it is vested will am be covered by clauses (a) and (b) of section 115 of the Civil P. C. And an error in the mode prescribed for the exercise of jurisdiction will be governed by clause (c) of section 115 of the Civil P. C. Mr. Ghias Muhammad, Advocate main tained that a Court acts illegally or with material irre gularity if in the exercise of its jurisdiction it arrives at a conclusion without any evidence to support it or without considering the materials placed before it or in complete disregard of the evidence on the record. He frankly con ceded that if there is evidence on the record and the Court after taking into consideration such evidence comes to a conclusion then the High Court has no power to interfere even if it differs profoundly from the conclusions of the subordinate Court. In the rulings of the Privy Council referred to above, the point urged by Mr. Ghias Muhammad did not arise and, therefore, in resolving this point these rulings are not of much assistance. He, however, relied on a number of authorities of the High Courts of India and Pakistan. Most of these cases are enumerated in the 4th Edition of Chitaley and Annaji Rao of the Code of Civil Procedure. Volume I, at pages 1103 and 1104. A few of these authorities are: Firm Indroj Mal Jugal Kishore v. Lijo Ram (A I R 1925 Lah. 278), Bhagwan Das v. Mst. Chetan Bai (A I R 1926 Lah. 566), Krishna Saroop v. Rai Bahadur Singh (A I R 1931 All. 452), A. Palanivapa Chattiar v. K. N. Krishnaswami Chettiar and others (A I R 1925 Mad. 877), Subbaroya Pillai v. Govindaswamy (A I R 1925 Mad, 494), and Ramcharitar Panday and others v. Basgit Rai and others (A I R 1932 Pat, 9). These rulings lay down that if a conclusion is arrived at without any evidence to support it then the Court acts illegally or with material irregularity in the exercise of its jurisdiction and such a finding can be revised by the High Court. Learned counsel for the respondent was not able to cite any authority on this point to the contrary. He, however, contended on the authority of Balakrishan Udayar v. Vasudeva Aiyar quoted above that section 115 of the Code of Civil Procedure applies to jurisdiction alone, the irregular exercise or the non‑exercise of it or the illegal assumption of it and is not directed against the conclusions of law or fact in which the question of jurisdiction is not involved. Even this ruling lays down that an irregular exercise of jurisdiction is covered by section 115 of the Code of Civil Procedure. What is illegal exercise of jurisdiction is amplified in the latest ruling of the Privy Council reported as N. S. Vankatagiri Ayyangar and another v. The Hindu Religious Endowments Board referred to above. It clearly lays down that when a Court in the exercise of its jurisdiction acts in breach of some provision of law or by committing some error of procedure in the trial which is material in that it may have affected the ultimate decision, then the Court acts illegally or with material irregularity within the meaning of subsection (c) of section 115 of the Code of Civil Procedure. That is to say, if the Court commits an error in the mode prescribed for the exercise of jurisdiction then the High Court has the power to interfere under section 115 of the Code of Civil Procedure. The question, therefore, is whether the Court commits an error in the mode prescribed for the exercise of juris diction if the finding is given by the Court in the absence of any evidence in support of it or in utter disregard of evidence on the record. Order XX, rule 4, of the Code of Civil Procedure provides that judgments of Courts other than a Court of Small Causes shall contain concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. According to section 3 of the Evidence Act, a fact is said to be proved when, after con sidering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the assumption that it exists. It is, therefore. clear that the decision of the Court must be based on legal grounds established by legal testimony. A judge cannot hold a fact to be proved unless there is legal proof of it. Conjecture cannot take the place of proof. It is the duty of the Court to consider the relevant and admissible evidence and then to decide whether or not a particular fact has been proved from the evidence adduced in the case. If there 45 no evidence in support of the truth of a particular fact, can a Court hold it to be proved ? And if there is legal evidence on the record, can a Court in giving its decision just ignore it ? In either case, in my opinion, the Court errs in law in the mode prescribed for the exercise of jurisdiction and acts illegally and with material irregularity, and such a case is covered by subsection (c) of section 115 of the Code of Civil Procedure. It goes without saying that a Court will be acting irregularly and with material irregularity if coming to a conclusion a Court imports its own knowledge or shuts its eyes to the legal evidence on the record. After a careful consideration of the point involved I find myself in complete agreement with the principle laid down in the rulings cited on behalf of the petitioners. A Court is legally bound to apply its judicial mind to the evidence on the record and in arriving at a conclusion is required to be guided by well recognised judicial principles. If a Court acts arbitrarily or capriciously in determining a matter in utter disregard of the legal evidence on the record F or goes out of its way to decide a point without any legal evidence in support of it, then it acts in the exercise of its jurisdiction illegally and with material irregularity and a find ing arrived at in such circumstances is open to revision by the High Court under section 115 of the Code of Civil Procedure. The question therefore, which falls for determination is whether there is, no evidence in support of the findings of the Court below on issues Nos. 2 and

3. The most important question is whether Agha Ali Ahmad, Advocate, was not authorised on behalf of all the plaintiffs to make the statement in the Court which he did on the 29th of May 1955, that the plaintiffs did not wish to pursue the application filed under Order XXIII, rule 3, of the Code of Civil Procedure. The power of attorney, Exh. D. W. 1/1, is admittedly signed by Sufi Muhammad Shafi. Mst, Nur Zainab and Mst. Surraiya Jabin. This was handed over to the counsel on the same date. by Anwar Husain A. W.

1. This document does not mention the names of the minors at all and Mst. Surraiya jabin does not appear to have signed it in the capacity of a next friend of, the minors. Both Anwar Hussain A. W. 1 and Mst. Surraiya. Jabin who was examined on commission stated that Agha Ali Ahmad, Advocate, had been engaged to assist Sheikh Qadir Ahmad Advocate, who was already appearing on behalf of all the plaintiffs including the minor plaintiffs, and that Mst. Surraiya jabin ,had engaged the counsel in her personal capacity and not as the next friend of the minors. They also stated that they had never instructed the counsel. to withdraw the application filed under Order XXIII, rule 3,, of the Code of Civil Procedure. They, however, admitted, that Anwar Husain used to act as an Agent of the plaintiffs and used to convey their instructions to their counsel. Mst. Surraiya jabin further stated that it would have been in the interests of the minors if the application filed under Order XXIII, rule 3, of the Code of Civil Procedure, had been pursued, but she admitted that in the month of June, 1956, she had learnt that the plaintiffs were required to pay a penalty of Rs. 2,800 and she had informed Anwar Husain that she was unable to pay that amount. Mst. Surraiya jabin is a Pardanashin lady and was f living in Lahore since the murder of her husband. Agha Ali Ahmad, Advocate, as D. W, 1, stated that he had been engaged in the suit on behalf of Mst. Surraiya Jabin. Muhammad Shafi and Mst. Nur Zainab, and that he had been given the power of attorney, Exh. D. W. 1/1, which bore the signatures of these three persons and in token of his acceptance he had signed it. He also stated that he was empowered to exercise all the powers incorporated in the power of attorney on behalf of these three persons. He also stated that Anwar Husain had paid him the foe and had also instructed him to make the statement which he made on the 29th of May 1956. At that time he was not informed of, any reasons as to why this application was not to be pressed. In cross‑examination he admitted that Mst. Surraiya jabin had not come to him in connection with this suit. He did not know the names of the minor plaintiffs. He also admitted that there was no mention of the minor plaintiffs in the power, of attorney, nor did it bear the signatures of Mst. Surraiya Jabin in the capacity of the next friend of the minor plaintiffs. Abdus Salam (D. W. 2) stated that the Court while impound ing the document had informed the plaintiffs that they shall have to pay a penalty of Rs. 2,800 and Sheikh Qadir Ahmad, Advocate, bad asked the Court to give him time to find out from the plaintiffs if they were willing to pay this amount. On the next date Agha Ali Ahmad Advocate, had appeared on behalf of all the plaintiffs and Anwar Husain was also present with him and he had informed the Court that the plaintiffs were unable to pay this heavy amount. Agha Ali Ahmad, Advocate, had then made the statement that the plaintiffs did not wish to pursue the application filed under Order XXIII, rule 3, of the Code of Civil Proce dure. This is all the evidence which was led by the parties in connection with the application filed by the plaintiffs under sections 151 and 153 of the Code of Civil Procedure for amendment of the proceedings. Learned counsel for the minor plaintiffs strenuously argued that there was no evidence that Agha Ali Ahmad, Advocate, had also been engaged on behalf of the minors or that he had made the statement on the 29th of May 1956, on their behalf. The power of attorney, Exh. D. W. 1/1, does not mention that he had also been engaged on behalf of the minor plaintiffs and both Anwar Husain and Mst. Surraiya Jabin stated that she had engaged Agha Ali Ahmad. in her personal capacity to assist Sheikh Qadir Ahmad who was already appearing on behalf of the plaintiffs. Agha Ali Ahmad, Advocate, has nowhere stated that he had been engaged on behalf of the minor plaintiffs or that he had made the statement on their behalf as well. On the contrary he stated very definitely that he had been engaged on behalf of Mst. Surraiya jabin, Muhammad Shafi and Mst. Nur Zainab, and he had been empowered to exercise all the powers incorporated in the power of attorney on behalf of these three persons. It is, therefore, perfectly clear that Agha Ali Ahmad, Advocate, to had been engaged on that very day had no knowledge at the time of the acceptance of the power of attorney (or at the time of making of the statement that the plaintiffs did not wish to pursue the application filed under Order XXIII, rule 3, Civil P. C.) that there were any minor plaintiffs as well in the suit. When he represented before the Court that he was appearing on behalf of the plaintiffs, what he meant was that he was appearing on behalf of the plaintiffs who had engaged him, i.e., Mst. Surraiya jabin, Muhammad Shafi and Mst. Nur Zainab, The conclusion is therefore irresistible that he had no authority to make any statement on behalf of the minor plaintiffs. The mere fact that Mst. Surriaya Jabin who happened to be the next friend of the minor plaintiffs had put her signature on the power of attorney did not raise any presumption that the counsel had G also been engaged on behalf of the minor plaintiffs. As I have already pointed out, the evidence adduced by the parties clearly establishes that Agha Ali Ahmad had not been engaged on behalf of the minors and in fact there is no evidence to the contrary. As such, he had no authority to make any state ment on behalf of the minor plaintiffs and in fact he did not make the statement which he did on the 29th of May 1956, on behalf of the minor plaintiffs. Learned counsel for the respondent argued that the minor plaintiffs are debarred from raising this point that Agha Ali Ahmad had not been engaged on their behalf because this point had not been raised in the application filed under sections 151 and 153 of the Code of Civil Procedure, and further that no issue had been framed on this particular point. It is true that the point does not appear to have been specifically raised in the application, but it was surely alleged therein that he was not authorised to make any statement on their behalf. In my opinion, the issue framed in this connection was comprehensive enough to include this point and moreover both the parties led evidence on this point in particular and the lower Court also gave its decision on this point. The parties, there fore, knew well that this was the most crucial point in the case. The lower Court while dealing with this question did not refer at all to the evidence adduced by the parties, It even ignored the positive evidence of Agha Ali Ahmad, Advocate, who had been produced by the respondent and who had categorically stated that he had been engaged on behalf of only three persons. In the face of this conclusive evidence, the following observations of the lower Court in this respect appear to be irrelevant and besides the point :‑ " It has been argued that Agha Ali Ahmad was not at all a counsel for the minor plaintiffs and thus he was not competent to withdraw from the application. I find myself unable to agree with this contention of the plaintiffs. When once Mst: Surraiya Jabin was appointed next friend of the minor plaintiffs, all subsequent acts done, by her in this suit would be considered to have been done for the minor plaintiffs also. The omission in Mukhtarnama is not at all material because it was understood that Mst. Surraiya Jabin was also representing minor plaintiffs ". The lower Court is wholly wrong in observing that it was understood that Mst. Surraiya Jabin was also representing minor plaintiffs understood by whom? The counsel does not say that he had understood at that time that Mst. Surraiya Jabin was also representing the minor plaintiffs. I am, therefore, of the considered opinion that the lower Court acted in the exercise of its jurisdiction illegally and with material irregularity in giving its decision that Agha Ali Ahmad, Advocate, had been engaged on behalf of the minor plaintiffs as well and was authorised to with draw the application on their behalf. There is no evidence on the record in support of this finding. In this view of the matter, the Court has the power to interfere with this finding in the exercise of its revisional jurisdiction under section 115 of the Code of Civil Procedure. For the reasons given above, I hold that Agha Ali Ahmad, Advocate, had not been engaged on behalf of the minor plaintiffs and he had no authority on their behalf to withdraw the application filed under Order XXIII, rule 3, pf the Code pi Civil Procedure and in fact he did not make any statement on their behalf on the 29th of May 1956. It follows that the order dismissing the application for the 1 enforcement of the compromise was passed in ignorance of the true state of affairs and, therefore, stands vitiated. Learned counsel for the minor plaintiffs also contended that the power of attorney did not in its terms authorise the counsel to withdraw such an application and at any rate the counsel could not have withdrawn the application without bringing it to the notice of the Court that the interests of the minors were also involved and in any case the Court should not have allowed the withdrawal as it was against the interests of the minors. I do not propose to deal with these questions, as, in my opinion, the matter is concluded by my finding that Agha Ali Ahmad, Advocate, had not been engaged on behalf of the minors and had no authority to appear on their behalf, and that in fact he did not make any statement on their behalf on the 29th of May 1956. I would, however, like to make a few observations as regards the duty of the Court in dealing with a case in which minors are involved either in the capacity of plaintiffs or defendants. The procedure to be adopted in regard to suits by or against minors is prescribed in Order XXXII, of the Code of Civil Procedure and rule 7 of this Order lays down 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. This 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. The Court is, therefore, expected to consider the interests of the minor. The duty of safe guarding his interests is thrown upon the Court and it the duty of the Court to watch his interest vigilantly. In its terms, Order XXXII, rule 7, of the Code of Civil Procedure has no application to the facts of the present case as no agreement or compromise had been effected. In this case only the application filed under Order XXIII, rule 3, of the Code of Civil Procedure was withdrawn. Was it the duty of the Court in these circumstances to have considered the interests of the minors before allow ing the withdrawal. Order XXIII, rule 1, empowers the plaintiff to withdraw his suit or abandon part of his claim as against all or any of the defendants. And it does not require the permission of the Court. This order does not cast any duty on the Court to consider the interests of the minor plaintiff before allowing withdrawal of the suit. Although there is no statutory provision requiring the Court L to watch the interests of the minor plaintiffs in such matters, but the principle is well recognised and is based on general principles of equity, justice and good conscience that no act can be done affecting the person, property or estate of a minor without the express or implied direction of the Court. In para. 1353 of Commentaries on Equity Jurisprudence by, Story (Third English Edition‑1920) it is stated that in all cases where an infant is a ward of Court, no act can be done affecting the person or property or state of the minor unless under the express or implied direction of the Court itself. It is also stated that once the Court has .thus directly or indirectly assumed authority over the person or property of an infant, as its ward it acts through out with all the anxious care and vigilance of a parent; and it allows neither the guardian, nor any other person, to do any act injurious to the rights or interests of the infant. In para. 1352 it is laid down that wherever an action .is brought relative to the person or property of an infant, although, he is not under any general guardian, appointed by the Court, he is treated as a ward of the Court, and as being under its special cognizance and protection. The aforesaid principles were given effect to by a Division Bench of the Chief Court of Punjab consisting of Scott‑Smith and Martineau, JJ. in Rajada and another v. Ghulla and others (59 P R 1919). Dealing with this question their Lordships observed as follows :‑ " This case may not strictly come within the terms of section 462 of the Code of Civil Procedure, because it is ‑not proved that the defendants entered into any agree ment or compromise with the next friend of the infant, but it is within the scope of the general principle enunciated in Story's Equity jurisprudence, section 1353 ' In all cases where an infant is a ward of Court, no act can be done affecting the person or property or state of the minor, unless under the express or implied direction of the Court itself.' The present case is very similar to the one referred to above. . No reason was given by the next friend for withdrawing the suit, nor was the Court asked to allow the plaintiff to withdraw from part of the suit with liberty to institute a fresh suit in respect of the subject matter of such part, nor does the Court appear to have considered whether the withdrawal was in the interests of the minors or not. Under such cir cumstances, we consider that the minors can bring a separate suit for the relief which was abandoned in the previous suit. A Court should be very jealous of the interests of minors and should not allow a suit or part of a suit instituted on their behalf to be withdrawn without being satisfied that it is for their benefit ". In the instant case it appears that the Court never applied its, mind to this aspect of the case before allowing with drawal of the application. The order dismissing the application does not say anything about it and it appears to me that it was not present to the mind of the Court at that time that some minor plaintiffs were also involved in this suit. I do not propose to go into the question that if the counsel had been authorised to withdraw the application on behalf of the minor plaintiffs, then what would have been the effect of the non‑consideration by the Court of the interests of the minors before allowing the withdrawal. In view of my earlier finding that the counsel had no authority to withdraw the application on behalf of the minors, this question does not arise. Suffice it to point out that the Courts should always remain on their guard to watch the interests of the minors vigilantly in all matters pending before them in which the interests of the minors are involved. Now I shall take up the Revision Petition No. 133 of 1957. It is admitted that Muhammad Shafi and Ma. Nut Zainab had put their signatures on the power of attorney. Exh. D. W. 1/1. This power of attorney does not say in so many words that the counsel was also empowered to withdraw any application. But the power is undoubtedly given to him to make any statement on their behalf. I am, therefore, of the view that the counsel had the power to make the statement on behalf of Muhammad Shafi and Mst. Nur Zainab. They did not appear before the Court to say that they had not authorised the counsel to withdraw the application. The statement of Agha Ali Ahmad, Advocate, is very clear on the point that he had been so authorised through Anwar Husain, their Agent. Learned counsel for these petitioners, however, argued that if the order dismissing the application filed under Order XXIII, rule 3, of the Code of Civil Procedure is to be vacated at the instance of the minor plaintiffs, the same should also be set aside in favour of Muhammad Shafi and Mst. Nur Zainab, otherwise it would result in an anomalous position because in that case application under Order XXIII, rule 3; of the Code of Civil Procedure shall have to be determined so far as the minor plaintiffs are concerned, and the suit shall have to be decided on merits so far as Muhammad Shafi and Mst. Nut Zainab are concerned. He maintained that the right of the plaintiffs in enforcing the compromise is an indivisible right. This right was derived by the present plaintiffs from the deceased plaintiff who had alleged that the suit had been compromised between the parties. In support of this contention he relied on Punnayya and another v. Lingayya and others (A I R 1928 Mad. 496 (1)). This was a suit in which plaintiff No. 2 was a minor and was represented by his brother and next friend, plaintiff No.

1. A compromise was arrived at under which the suit was agreed to be withdrawn on payment of a certain sum. It was held that one plaintiff could not withdraw from a suit without the consent of the others, especially as plaintiff No. 2 was a minor and thus no effect could be given to the compromise. I think the right of the plaintiffs to enforce the alleged compromise is indivisible and cannot be split up. No law or authority has been cited before me to warrant the splitting up of the suit in this manner. For the aforesaid) reasons, I accept these revision petitions, set aside the order of the lower Court, dated the 9th of January 1957, and direct that the trial Court should amend its proceed ings by deleting the order, dated the 29th of May 1956 whereby the application filed under Order XXIII, rule 3, of the Code of Civil Procedure was dismissed. The Court shall then proceed to determine the application under Order XXIII, rule 3, of the Code of Civil Procedure in accordance with law from the stage where it was left over on the 28th of April 1956. In the circumstances of the case, however, the parties will bear their own costs. K.M.A. Revision accepted.