SAYED ZAHID HUSSAIN, J. --- A suit for possession through partition, rendition of account, recovery of profits and for permanent injunction was filed by the petitioners (petitioner No. 1, the father of petitioners Nos. 2 to 4). The suit related to the share in the leftover of Mst. Shahina Tehmasab, one of the successors of Ch. Tehmasab Khan who had died on 7.11.1979 whereas Mst. Shahina Tehmasab had died on 10.9.1988. Petitioners Nos. 2 to 4 who were then minors and were being represented by their real father (petitioner No. 1) are statedly now major and are represented through their learned counsel: While the said suit was pending before the Trial Court, Rawalpindi, the petitioners filed an application under Section 147 readwith Rule 7 of Order 32 of the Code of Civil Procedure, 1908 for filing a compromise dated 27.4.1992. The application under Order 23; Rule 3 of the Code of Civil Procedure, 1908 to this effect was also filed. The request was granted by the Trial Court. On 30.4.1992 being fully conscious of rights and interest of the minors. On that date, the parties and their learned counsel had affirmed the factum of compromise before the Court, the terms whereof were partly performed by making payment of Rs. 50,000/- in Court and received by petitioner No. 1. For' the balance amount of Rs. 90,000/- the case was adjourned to 1.11.1992. On the adjourned date i.e. 1.11.1992 the respondents/defendants tendered before the Court the remaining sum of Rs. 90,000/-, however, the petitioner refused to, receive that amount and applied for the cancellation and rescission of the compromise (Ex.C-1). By adjourning the matter to 21.11.1992 the Court directed the respondents/defendants to make deposit of Rs. 90,000/- in Court and the petitioners/plaintiffs to deposit a sum of Rs. 50,0001- (already received. By them) also in the Court.
The case was ,adjourned on few dates when an application under Order 6, Rule 17 'of the Code of Civil Procedure, 1908 was filed by the petitioners. The matter somehow lingered on till 4.11.1993 when it was stated before the Court that the parties would honour the compromise dated 27.4.1992 (Ex.C-1) and that petitioner No. 1 would purchase National Defence Saving Certificates in the names of the three minors for Rs. 50,000/- each which they will be entitled to encash on attaining majority.
Accordingly the applications filed by the petitioners i.e. For cancellation of the compromise and for amendment in the plaint were withdrawn and were dismissed. The case was adjourned to 2.12.1993 in order to enable the petitioners to withdraw the amount which had been deposited in the Court for the purchase of National Defence Saving Certificates. It was then adjourned to 20.12.1993 and to 18.1.1994. On this date, an application for rescission of the compromise was again filed and the matter was sought to be reopened once again. The said application was, however accepted by the Trial Court on 19.1.1995 who took the view that the compromise was not in the interest of the minors which was ordered to be rescinded meaning thereby the suit was to be decided on merits. Appeal preferred there against by the respondents was, however, accepted by the learned Additional District Judge, Rawalpindi on 23.12.1997. This is revision petition qua the same.
2. Writ Petition No. 630/1998 also arises in the same context qua the same judgment of the learned Additional District Judge, Rawalpindi. The fate whereof according to the- learned counsel is dependant upon the judgment in the revision petition.
3. The main contention of the learned counsel for the petitioner is that since the interest of the minors was involved, therefore, the Court was under duty to take care of their interest and guard the same. According to the learned counsel, in the original suit all the properties were not included and Some valuable properties had been left out, therefore the case. Required to be decided on merits.
On the other hand,, the learned counsel for the respondents points out that there was a written compromise which was filed by the petitioners who lateron also affirmed the same, on 4.11.1993, they therefore could not withdraw or resile therefrom. It is, however, stated by him that in case there were some other properties which did not form part of compromise or, the suit, the petitioners could avail remedy in proper proceedings but a lawful compromise ,arrived at consciously could not be revoked.
4. As is evident from the salient features of the litigation mentioned above and the perusal of the proceedings of the Trial, Court in the suit a compromise was indeed arrived at with the permission of the Court which was partly performed by receiving a sum of Rs. 50,000/- from the respondents by the petitioners. The disposal of the suit was, however, adjourned and pended for the payment of the balance amount of Rs. 90,000/- which was tendered by the respondents /defendants in Court on. 1.11.1992. It was petitioner No. 1 (the father of the minors) who had been changing mind and stance from time to time. Once the matter was finally resolved by making statements on 4.11.1993, he should have honoured and respected the compromise instead of playing hide and seek and changing stance time and again before the Court. It cannot be successfully, pleaded that being real father of the minors, he was not looking after their interest. He is an educated person who is even present in Court today. It is not a case of any of the petitioners that their father had been siding with other side i.e. ' defendants or acting contrary to their interest. Rather the very first paragraph of the plaint discloses that he had no adverse interest against his minor children. Mere omission of some properties (if at all there be any) from the suit or the compromise would lend no justification to withdraw, resile or get out of compromise arrived, at being fully conscious of the rights and 'interest of the minors. Indeed as mentioned above, the compromise was implemented and even benefit there under was also derived by the petitioners by receiving a sum of Rs. 50,0001- in the Court. The sanctity of such a compromise could not be eroded or nullified on such flimsy premises. In A.R. Khan v P.N. Boga through Legal Heir (PLD 1987 SC 107) the value and sanctity of compromises made before the Courts and the conduct of parties qua the same was highlighted.
The factum of compromise and settlement of the matter in the instant case was not once but twice admitted and owned before the Court. The conduct of petitioner No. 1, not only had been inconsistent but also he had been approbating and reprobating, which cannot be countenanced by the Court. Indeed he was precluded and estopped to adopt inconsistent position in the course of proceedings in the same cause. The Trial Court, therefore, acted illegally in allowing the petitioner to resile from the commitment merely on the ground that "they omitted to add very valuable property of deceased Tehmasab Khan, the predecessor of the parties." I am not unmindful of the rights and interest of the minors. In case 'there be other properties to which the minors were entitled to a share, it would be open for them to seek avail remedy qua the same but the compromise and settlement qua the suit properties cannot be allowed to be frustrated and nullified. The learned Additional District Judge, Rawalpindi thus did not act illegally in reversing the order of the Trial Court. In view of the above, the revision petition is dismissed accordingly with the observation made above. No order as to costs. .