1. This is a revision petition against the order of the Sub-Judge, Rawalakote dated 5-8-1959 by which Mohammad Ayub Khan the next friend of the minor plaintiff Suleman was allowed to withdraw the suit.
2. The facts giving rise to this revision petition are that Firoze Khan (not the defendant-respondent) the father of Suleman minor plaintiff sold the suit land measuring 11 kanals 10 marlas together with a house in favour of Khan Mohammad Khan and Firoze Khan defendants for a consideration of Rs.
3. 600 but in order to ward off possible pre-emptors entered a price of Rs. 2,300 in the sale deed which was registered on 31-5-1958. Suleman Khan the minor son of the vendor brought a suit on 21- 10-1958 in the Court of the Sub-Judge, Rawalakote to pre-empt the sale alleging that in fact Rs. 600 had been paid and that was also the market price. Issues had been struck in the suit on 8-12-1958 and the defendants were called upon to lead evidence. The defendants had closed their evidence on 26-5-1959. 9-8-1959 was the next date fixed in the hearing of the suit when on 5-8-1959 Mohammad Ayub Khan the next friend of the minor made an application for bringing out the file alleging that he wanted to withdraw the suit and also applied for permission to withdraw the suit alleging that the withdrawal of the suit was in the interest of the minor. An application for withdrawal of the suit was also put in, in which it was put down that the person and property of the minor could not bear the burden of the pre-emption money and the costs of the suit and that withdrawal of the suit would be beneficial for the minor and would not be Injurious to his interest in any case. The learned Sub-Judge on the same day recorded the statement of the next friend of the minor who stated that he is the next friend of the minor but that he is unable to deposit the 'Zar-i- Khumas' which means one-fifth of the purchase price because the plaintiff is a minor and he, the plaintiff, has given him (next friend) no money for making the deposit. He should, therefore; be allowed to withdraw from the prosecution of the suit. After the statement the learned Sub-Judge wrote the following order: - "The statement of the next friend has been recorded, it appears frown his statement that the plaintiff in the event of a decree being passed in his favour is unable to pay in the pre-emption money and also cannot prosecute the suit. No next friend of the minor has appeared. The father of the minor plaintiff is also present. He has also not named any other next friend. Therefore, permission is granted that the plaintiff can present a petition for withdrawal. Order announced."
4. Then a separate order was recorded on the order-sheet of the even date which is as follows: - "Next friend of the minor plaintiff and the defendants present. The file has been brought out on the application of the next friend of the minor and placed before me. The next friend of the plaintiff has also made an application for withdrawal that it is in the interest of the plaintiff that I (next friend) should withdraw from the suit because in the event of a decree being passed he is unable to pay in the decretal amount. Therefore, the next friend of the plaintiff is allowed to withdraw. The suit of the plaintiff is dismissed as a result of his petition for withdrawal. Order announced."
5. Now the minor plaintiff has moved this revision petition through another next friend Gul Sher who claims to be his uncle by relationship praying that the order of dismissal of the suit be set aside since it was not in the interest of the minor and the learned Sub-Judge had not judicially applied his mind to it.
6. Mr. Said Mohammad Khan, learned counsel for the defendant-respondents has taken a preliminary objection that the revision is time-barred and therefore should be dismissed. He cited PLD 1961 Azad J & K 14 rind PLD 1968 Azad 1 & K 21. It has been laid down in PLD 1961 Azad J & K 14 that there is no time limit for filing of revision petitions where; the delay can be reasonably explained though the practice is that such a petition should be filed without unnecessary delay.
7. The Full Bench laid down in PLD 1968 Azad J & K 21 that Article 181, Limitation Act applies not only to the application under the C. P. C. But also applies to such applications tinder the Arbitration Act for which no period of limitation is prescribed anywhere in the Limitation Act or in the Arbitration Act.
8. The question whether Article--cle 181 applies to the revision petition under section 1 15 of the Civil Procedure Code was not involved in this case.
9. After learning the facts of the case and going through the record I called upon the learned counsel for the respondents to show cause why the order of the learned Sub-Judge should not be set aside in exercise of my powers of revision. It is agreed that there is no limitation prescribed where the Court wants to move suo mote in exercise of its powers of revision though of course the learned counsel for the respondents argued that the Court should not move sno motu when a period of about 11 years has elapsed.
10. The reason given by Mohammad Ayub Khan, the next friend of the minor-plaintiff for withdrawing, as disclosed in his state--ment recorded on 5-8-1959, was that he was unable to deposit the 'Zar- i-Zamanat' which means `Zar-i-Khumas' and even then he applied that he should be allowed to withdraw from the prosecution of the case. He did not apply for permission to withdraw the suit on behalf of the plaintiff. The `Zar-i-Khumas' to the tune of Rs. 500, had in fact been deposited into the Court which was entered at No. 2 in the register of deposits on 8-12-1958. Mohammad Ayub Khan, the next friend, practiced a fraud upon the Court and suppressed the fact that the `Zar-i-Khumas' had already been deposited into the Court. The learned Sub-Judge after recording the statement of the next friend recorded in his order that the plaintiff in the event of a decree being passed in his favour would be unable to pay in the decretal amount, therefore, the plaintiff is allowed to put in the petition for withdrawal of the suit. The next friend gave one reason for permission to withdraw which was that he was unable to deposit the `Zar-i-Khumas' which had already been deposited but the learned Sub-Judge gave quite a different reason for permitting withdrawal of the suit which was that m the event of a decree being passed in favour of the plaintiff, he would not be able to pay in the decretal amount. It is no doubt put down in the various petitions filed by the next friend on 5-8-1959 that the plaintiff would not be able to pay up the pre-emption money but then the learned Sub-Judge while passing the order dated 5-8-1959 recorded on the back of Mohammad Ayub Khan's application for permission to withdraw had before him and under his consideration only the statement of the next friend of the minor as is apparent from his order reproduced above. The next friend had in his statement recorded on 5.8-1959 prayed that he should be allowed to withdraw from the prosecution of the suit and not that he should be allowed to withdraw the suit.
11. Order XXXII, rule 10, C. P. C. Provides that on the retire--ment, removal or death of the next friend of a minor, further pro--ceedings shall be stayed until the appointment of a next friend in his place.
12. Sub-rule (2) provides that where the pleader of such minor omits, within a reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or in the matter in issue may apply to the Court for the appoint--ment of one, and the Court may appoint such person as it thinks fit. The next friend in his statement recorded on 5-8-1959 only applied for withdrawal from the prosecution of the suit. He did not say in that statement that he wanted to withdraw the suit itself. The proper course for the learned Sub-Judge was to allow the next friend to withdraw but then before allowing to withdraw he should have called upon the retiring next friend to procure a fit person to be put in his place and giving security for the costs already incurred as is provided in Order XXXII, rule 8 (1) which is reproduced below:- "Unless otherwise ordered by the Court, a next friend shall not retire without first procuring a fit person to be put in his place and giving security for the costs already incurred"
13. The learned Sub-Judge neither called upon the retiring next friend to procure a fit person to act in his place nor did he call upon him to furnish security for the costs already incurred. He did not even adjourn the proceedings. The Madras High Court in AIR 1915 Mad. 461 went to the extent of laying down that the suit does not abate by reason of the death of the next friend and that the Court should either appoint a new next friend or keep the suit pending till the minor attains majority and that an order dismissing the suit is a nullity.
14. Learned Counsel for the petitioner cited PLD 1959 Azad J & K 19, PLD1961 Azad J & K 8 and PLD 1963 Azad J & K 59 in which I had moved sua motu in the exercise of my powers of revision where I found that the compromise allowed by the Court was not in the interest of the minor. Learned counsel also cited PLD 1966 Quetta 5 and PLD 1965 Kar. 341.
15. PLD 1963 Azad J & K 59 was a case of pre-emption. On page 62 of this judgment it is written:- "I have to see if the learned Sub-Judge had exercised a judicial discretion in granting leave to compromise on behalf of the minors. The reason given in the petition of obtaining leave and the reasons recorded by the trial Court while granting leave is that the minors cannot pay the pre- emption money. The trial Court had nothing before it to hold like this except a bare; statement of Sohbat A.I Khan next friend of the plaintiff who was effecting the compromise with the vendee. It was alleged in the plaint that the sale had been made in fact for Rs. 1,500 and that the market value of the suit land was also Rs. 1,500 though in order to defeat the right of pre-emption the price entered in the sale deed was Rs. 6,500. It should be remembered that Rs. 1,300 had been deposited into the Court as one-fifth of the purchase price. If the plaintiffs could pay Rs. 1,300 as one-fifth of tile purchase price I wonder if they could not pay the rest of the pre-emption money. The learned Sub-Judge while examining Sohbat A.I Khan should have ascertained from him why he had brought the suit for pre-emption if the plaintiffs were not in a position to pay the pre-emption money. The learned Sub-Judge did not try to satisfy his conscience that the compromise was for the benefit of the minors. It has been stated at the bar and admitted by the vendee that one of the minors is quite of a mature age and that their father is also living. The trial Court should have issued notice to the plaintiffs and their father if order to ascertain and to be satisfied that the plaintiffs were really not in a position to pay the pre-emption money. It has been held in some cases that an affidavit by the guardian setting forth the terms of the compromise and how they are beneficial to the minors should be filed while there are other cases wherein it has been held that there should also be an opinion of the counsel or a statement of the counsel at the bar that the compromise is a fit and proper one to be sanctioned in the interest of the minors."
16. It was also laid down in this ruling that:- "Minors are supposed to be wards of the Courts and while sanctioning any compromise on their behalf the Courts have to be on their guard and satisfy their conscience that the proposed agreement or compromise is for the benefit of the minors. The Privy Council in a couple of cases reported as AIR 1922 P C 186 and 1937 P C 35, when called upon to grant leave to compromise on behalf of the minors, called for a certificate from the High Court concerned that the proposed compromise was really in the interest and for the benefit of the minors."
17. The learned Sub-Judge does not seem to have satisfied his conscience that the compromise resulting in withdrawal of the suit was for the benefit of the minor. The next friend gave the reason for the withdrawal as his inability to deposit the 'Zar-i-Khumas' but the learned Sub-Judge while he was acting only on the statement of the next friend gave quite a different reason for permission of withdrawal which was that in the event of a decree being passed in favour of the plaintiff, he would not be able to pay in the pre-emption money. The learned Sub-Judge did not record on the file that the proposed withdrawal was for the benefit of the minor. He simply reproduced the contention of the next friend that the withdrawal was for the benefit of the minor and allowed him to withdraw.
18. PLD 1966 Quetta 5 and PLD 1965 Kar. 341 are the judgments of Anwar-ul-Haq, J. Where finding that the compromise was not in the interest of the minor, the learned Judge had set aside the compromise decree under the inherent powers of the Court under section 151, C. P. C. It was contended before his Lordship in both these reported cases that the remedy of the minor plaintiff was by way of a suit but his Lordship laid down on page 7 of the judgment reported as PLD 1966 Quetta 5 that: - "The fact that the minor has a remedy to have the order set aside by a suit, does not exclude the remedy which the Court possesses under section 151, if the Court thinks that it is essential in the interest of justice that this power under section 151, should be exercised. It is of course easy in the quiet atmosphere of the Court to say that this and that should be done, another suit should be brought, but anyone who has any experience of the difficulties of litigation in India particularly where a widow or a minor is concerned, can realize that where two courses are open, one in which the Court can take immediate action in a suit that is before it and the other in which the Court can merely say that another suit should be filed, the Court is bound in the exercise of its duties and in answer to its own conscience to direct that course should be taken which would lessen the difficulties and remove obstructions in the way of widows and orphans."
19. These observations hold good equally of minors. Mr. Said Mohammad Khan, learned counsel for the respondents argued that the minor plaintiff has a remedy by way of filing a suit therefore the Court should not move suo motu in the revision. Keeping in view the difficulties of litigations the Court should not hesitate to afford the summary remedy and should not direct the minor plaintiff to have recourse to lengthy litigation by way of a fresh suit.
20. Similarly Anwaral Haq, J. Observed in PLD 1965 Kar. 341 at p. 343, para. 3 that :- "On behalf of the respondents a preliminary objection has been raised to the effect that the present application under section 151, C. P. C. Is not maintainable, and that the proper course for the minor plaintiffs was to file a suit for setting aside the decree in question. Several authorities have been cited at the Bar by the learned counsel for the parties in support of their respective contentions in this behalf, and these may be briefly noticed. In Mohanlal Tejumal v. Sh. Khushalibai and others AIR 1937 Sind 101 it was held that the fact that the minor has a remedy to have the order set aside by a suit, does not exclude the remedy which the Court possesses under sec--petition 151, if the Court thinks that it is essential in the interests of justice that this power under section 151 should be exercised. It is of course easy in the quiet atmosphere of the Court to say that this and that should be done, another suit should be brought, but anyone who has any experience of the difficulties of litigation in India, particularly where a widow or a minor is concerned, can realize that where two courses are open, one in which the Court can take immediate action in a suit that is before it and the other in which the Court can merely say that another suit should be filed, the Court is bound in the exercise of its duty and in answer to its own conscience to direct that course should be taken which would lesson the difficulties and remove obstructions in the way of widows and orphans."
21. A similar view was expressed in Talib A.I Shah v. Piarey Lal and another, in which it was observed that- "Subsequent to the discovery that the minor has not been properly represented by a duly appointed guardian it is open `' to the Court in the exercise of its inherent power under section 151, to restore the case to its original number on the file and proceed with it after duly appointing a guardian. The restoration of the case and the appointment of a new guardian cannot be held to be tantamount to the addition of a new party to the suit."
22. It was laid down by me in PLD 1961 Azad J & K 8 :- "Minors are wards of the Court and the Courts have to satisfy their conscience that the proposed compromise is for the benefit of the minors. Where the Court has not applied its mind to the fact whether the compromise was or was not for the benefit of the minor, the compromise decree cannot be sustained."
23. As already observed above the learned Sub-Judge did not satisfy his conscience that the withdrawal was for the benefit of the minor. He did not record his finding that it was in fact for the benefit of the minor. The next friend Mohammad Ayub Khan practiced a fraud on the Court by saying that he was unable to B deposit the `Zar-i-Khumas' whereas it had already been deposited in the Court and after the dismissal of the suit, he withdrew the amount of Rs. 500 Zar-i-Khumas as I ascertained by calling the register of deposits of the trial Court. The contention of the plaintiff in the plaint was that the land had in fact been sold for Rs. 600 and that its market value was also Rs.
24. 600 and in order to keep away pre-emptors, a fictitious price of Rs. 2,500 had been entered in the sale deed. Plaintiff's evidence had yet to be produced. Possibly he could prove that the price had not been fixed in good faith and that the market value of the land was not more than Rs. 600. Rs.
25. 500 had already been deposited on behalf of the plaintiff into the Court. In the circumstances it cannot be said that the withdrawal was in the interest of the minor. The next friend wanted to withdraw from the suit. The learned Sub-Judge should have allowed him to withdraw after calling upon hire to furnish a fit person to act as next friend in his place and should also have called upon him to furnish security for the costs already incurred. The counsel for the plaintiff was not present and his opinion or certificate was not obtained that the withdrawal was for the benefit of the minor.
26. Learned counsel for the respondents argued that the Court should not move sun motu after the lapse of 11 years. In ordinary circumstances I would very much hesitate to move sun motu in exercise of my revisional powers after the lapse of such a long time but in the case before me the interests of a minor are involved and my judicial conscience demands that the minor should be given a summary remedy rather than be referred to C the lengthy procedure of getting the compromise decree set aside by a regular suit. Exercising my powers of revision I set aside the judgment and decree of the learned Sub-Judge, Rawalakote dated 5-8-1959, and remand the case back to him with the direction to restore the suit to its original number and proceed further from the stage the case had reached.
27. Gul Sher who has moved the revision petition as the next friend of the minor plaintiff states that he is an uncle of the minor by relationship and that he is prepared to deposit the Zar-i-Khumas and to incur all expenses and to pay up the pre-emption money on behalf of the minor plaintiff so that the minor's ancestral land does not go out of the family and the minor gets back the land sold by his father. The trial Court shall take a bond from him that he would be personally liable for the expenses of the plaintiff and would also deposit the `Zar-i-Khumas' and the decretal amount in the event of the plaintiff's suit being decreed.
28. The parties have been directed to appear before the Sub---Judge, Rawalakote on 7-7-1970.
29. S. A. H.
30. Revision accepted.