' On 19-3-1988 the petitioners filed a suit against the respondents. It was stated in the plaint that on 16-3-1976 respondents Nos.1 and 2 filed a suit against Fazal Muhammad, processor-in-interest 'of the petitioners, and respondents Nos.4 and 5 and Muhammad Tufail respondent No.3 This was a suit for specific performance of agreement to sell, dated 6-6-1975 pertaining to the suit-land measuring 37 Kanals, 5 Marlas. During the pendency of the suit on 21-11-1982 respondent No.4 filed an application under Order XXXII rule 7, C.P.C. For entering into a compromise with respondents Nos.1 and 2 on behalf of the petitioners who were minor at that time. The learned Senior Civil Judge wrote word "allowed" on the same day. The suit was decided and the defendants in the suit were directed to deposit a sum of Rs.28,000 failing which the suit was to be decreed. The said compromise and the decree based on the same was questioned, on the grounds that these are against the law as also against the interest of the minors and result of negligence on the part of guardian ad litem. It was further stated that Mst. Bashiran Bibi the mother was never formally appointed guardian ad litem. Whereas under the agreement, dated 6-6-1975 Rs.10,000 alleged to have been paid as earnest, return of Rs.28,000 was ordered which is against the interest of the minors. The said compromise and decree is ineffective upon the rights of the petitioners. It was then stated that earlier an application under section 47, C.P.C. Was filed which was dismissed on 23-9-1987. A first appeal was also dismissed by a learned Additional District Judge on 1-1-1988.
They filed a civil revision in this Court where they were allowed to file a fresh suit vide order, dated 27-2-1988. A decree was accordingly sought that the said order and decree, dated 21-11-1982 and said compromise be declared to be illegal and void and ineffective upon the rights of the petitioners. Respondents Nos. 1 and 2 contested the suit. They objected that earlier application under section 12(2), C.P.C. And section 27 of Guardians and Wards Act, 1890, were dismissed on 15- 5-1985. Thereafter an application was filed under section 47, C.P.C. Which was dismissed.
According to the respondents Nos. 1 and 2 the application was filed by the guardian ad litem which was allowed and then statements of the parties were recorded by the learned Senior Civil Judge and the petitioners and other defendants were directed to deposit Rs.28,000 by 25-2-1983. The amount was not deposited and the suit was accordingly decreed in the terms of the decree.
Following issues were framed by the learned trial Court:--
(1) Whether the plaintiffs have got no locus standi and cause of action for the filing of this suit? OPD
(2) Whether the suit is not maintainable in its present form? OPD
(3) Whether the suit is barred by time? OPD
(4) Whether the present suit is barred by principle of res judicata under section 11 of C.P.C? OPD
(5) Whether the plaintiffs are estopped by their words and conduct from assailing the validity of judgment and decree, dated 21-11-1982? OPD (5A) Whether the suit has been incorrectly valued for the purpose of court-fee and jurisdiction, if so, what is its correct valuation? OPD (5B) Whether the plaintiffs have brought this suit in collusion with defendants Nos.3 to 5 OPD
(6) Whether the judgment and decree, dated 21-11-1982 was obtained through fraud and mis- representation and that the same was against the interest of the minors and as such is liable to be set aside? OPP (6A) Whether the plaintiffs suit is false, frivolous, vexations and as such the contesting defendants Nos. 1 and 2 are entitled to recover special costs under section 35-A C.P.C. From them? OPD
(7) Relief.
' Evidence of the parties were recorded. Issues Nos. 1, 4, 5 and 6 were answered against the petitioners while Issues Nos.2, 4, 5-A, 5-B and 6A were decided against respondents Nos.1 and 2.
The suit was dismissed on 30-6-1996. A first appeal filed by the petitioners was dismissed by a learned Addl. District Judge, Gojra at. T.T. Singh on 6-5-1999.
2. Learned counsel for the petitioners contends that the provisions of Order XXXII, rule 7, C.P.C. Had been violated and the guardian ad litem had otherwise acted against the interest of the minors in the matter of the said compromise and consequent decree and as such the impugned judgments and decrees are without jurisdiction. Learned counsel for respondents Nos. 1 and 2, on the other hand, contends that the said provision were duly followed and it was only after the leave of the Court that the statements were recorded and decree was passed in the manner stated above.
3. I have gone through the copies of the record, with the assistance of the learned counsel for the parties. The copy of the plaint in the earlier suit filed by respondents Nos. 1 and 2 against the petitioners and remaining respondents is Exh.P1. According to this plaint Fazal Muhammad, the predecessor-in-interest of the petitioners, respondents Nos. 4 and 5 and Muhammad Tufail respondent No.3 were owners of the suit-land measuring 37 Kanals, 5 Marlas. The petitioners and respondents Nos. 4 and 5 were impleaded as Fazal Muhammad died during the pendency of the suit. According to the amended plaint the petitioners who were defendants Nos. 4 to 9 in the suit were minors and were being sued through Mst. Bashiran Bibi respondent No.4 their mother, as guardian ad litem. The plaint further narrates that the said owners agreed to sell the land to the said plaintiffs for consideration of Rs.1,08,375, received a sum of Rs.10,000 as earnest and executed agreement, dated 6-6-1975. The contract was to be performed by 13-3-1976. It was complained that the said executants have refused to perform their part of the contract. I may note here that the suit was originally filed on 16-3-1976. The original defendants filed written statements Exh.P.2 The plea taken was that since the original defendants had little land, terms settled was that first they will purchase some other land and then contract was to be performed.
4. On 21-11-1982 application Exh.P3 was filed under Order XXXII, rule 7, C.P.C. I deem it proper to reproduce here the relevant para.3 of the said application:-- {{URDU TEXT}} ' On the same day the learned Senior Civil Judge endorsed the word "allowed" on the margin of the application and affixed his signatures.
5. On the day the learned Senior Civil Judge recorded the following statements of Mst. Bashiran Bibi and Muhammad Suleman (respondent No.5). This statement was got recorded by dictation to the Reader as noted on the side of the said proceedings:-- {{URDU TEXT}}
6. These proceedings Exh.P4 are present at page 87 of the paper book. Parallel to note of R.O. And AC two lines have been added as follows and this is visible on the face of record:--
7. Now the statement of Abdul Haq one of the contesting respondent was also recorded in rather peculiar manner. Following is his statements:-- {{URDU TEXT}}
8. Now the order was recorded on a separate page (page 89 of the paper book) and this order is not in the same hand as that of the person who recorded the statement. Apparently the learned Judge himself recorded his order. Now according to this order the learned Judge proceeded to state that in view of the statement recorded, the suit is decided on the following terms:--
(i) The defendants to pay Rs.28,000 to the plaintiffs up to 25-2-1983. They will deposit this amount in Court.
(ii) In case the amount is deposited in Court till the said date the suit shall be deemed to have been dismissed and the plaintiffs will be entitled to receive the amount.
(iii) In case the amount is not deposited within the said period of time the suit shall be deemed to have been decreed with costs.
' The decree sheet was prepared in line with the said order.
9. Now the learned Addl. District Judge has observed that he was gone through the application under Order XXXII, rule 7, C.P.C. Which was allowed by the Court and was not contrary to the interest of the minors. Similarly the learned Senior Civil Judge has observed that the proceedings were taken keeping in view the interest of minors. I am constrained to observe that none of the two learned Judges have even cared to read muchless examine carefully the said application and then what happened thereafter. I have reproduced the contents of the application. The only offer made on behalf of the minors was that they do not want to sell the land and would rather pay Rs.28,000. There is no mention at all in the application that they agreed that in case they fail to make the deposit, the suit shall be deemed to have been decreed.
10. A bare look on the proceedings recorded by the Reader of the Court on 21-11-1982 shows the havoc he has played. In the first instance he tried to insert the said illegal and unauthorized condition in the statement of Abdul Haq respondent. He in fact started and wrote the word but found that space is not there. He then inserted the condition under the statement of Mst. Bashir Bibi already recorded.
11. It is indeed shocking that the learned Senior Civil Judge, who recorded order, dated 21-11-1982 also did not care to read the application which he had allowed. Had he done so he must have at once noticed the fraud played by his Reader with the Court proceedings as a result whereof he passed a decree on terms which he had not even approved.
12. Learned counsel for respondents Nos. 1 and 2 when confronted with the said glaring facts states that no one has raised this objection before. He may be right but then it is equally duty of the Court when called upon to examine the record to do so. The records have been examined by this Court with the assistance of the learned counsel and what has emerged has already been noted above.
One cannot close his eyes to such a glaring fraud apparent on the face of record.
13. This civil revision is accordingly allowed. The impugned judgments and decrees of the learned Courts below are set aside and the suit filed by the petitioners is decreed with costs throughout.