MUSHTAQ AHMAD TARAR J, This civil revision is directed against the judgment and decree dated 27.09.2008 passed by the learned Addl. District Judge, Mailsi, whereby he dismissed appeal of the petitioners filed against the judgment and decree dated 17.06.2008 passed by the learned Civil Judge, Mailsi, while decreeing the suit of respondent for specific performance of contract.
2. Precisely, stated facts of the case are that respondent filed suit for specific performance of agreement to sell dated 24.07.2006 against the petitioners regarding land measuring 04-kanals bearing Khewat No.40/40, Khatoni No.106 Khasra No.3/25, alleging that the petitioner No. 1 being owner of suit land executed agreement to sell dated 24.07.2006 in favour of the respondent of suit land for consideration of Rs.2,00,000/-, out of which amount of Rs.1,00,000/- was paid as earnest money in the presence of the witnesses, whereas the amount of Rs.50,000/- was paid on 05.08.2006 in the presence of the witnesses and in this respect agreement to sell and receipt were executed; that as the land of the petitioner No.1 was pledged with the bank, the petitioner No.1 promised to execute the sale deed on 24.08.2006 after getting redeemed his land from the bank; that on the target date petitioner No.1 did not come for execution of sale deed; that later on, out of greed, the petitioner No.1 transferred his land in favour of his sons, petitioners No.2 to 4 vide tamleek mutation No.1208 dated 24.08.2007; that the petitioners were approached time and again and were asked to receive the remaining amount Rs.50,000/- and to execute the sale deed in his favour, but they have refused. In the suit, the respondent prayed for the decree for specific performance of contract and for the cancellation of mutation No.1208. The petitioners contested the suit by filing written statement, in which they denied from agreement to sell in favour of the respondent and prayed for dismissal of suit. The learned trial court vide order dated 01.03.2008 framed the following issues:-
1. Whether the plaintiff purchased the subject matter vide agreement dated 24.07.2006?OPP
2. Whether the plaintiff paid earnest money Rs.150,000/-?OPP
3. Whether the plaintiff is in possession over the subject matter on the basis of agreement to sell dated 24.07.2006?OPP
4. Whether the plaintiff has got no cause of action to file this suit? OPD
5. Whether the defendants are entitled to receive special costs u/s 35-A, CPC?OPD
6. Relief.
3. On 17.06.2008, when the case was fixed for evidence of the respondent, the petitioner No.1, the father and guardian of other petitioners made offer for decision of the case on the basis of Special Oath on Holy Quran by Sh. Muhammad Iqbal, the scriber of the agreement to sell and resultantly the statements of the parties were recorded. On the same day Sh. Muhammad Iqbal on Special Oath of Holy Quran made statement in response to the offer of petitioners and consequently, the learned trial court decreed the suit of respondent in his favour against the petitioners vide order dated 17.06.2008. The petitioners preferred civil appeal against the order and decree of the learned trial court before the learned Addl. District Judge, Mailsi, which was dismissed vide impugned judgment dated 27.09.2008, hence, this revision.
The learned counsel for the petitioners contended that Sh. Muhammad Iqbal did not make the statement on special oath as per terms of offer made by petitioner No. 1 and the learned trial court illegally decreed the suit of respondent on the basis of such statement of Sh. Muhammad Iqbal; that petitioners No.2 to 4 were minor at that time and petitioner No.1 was not appointed as their guardian ad litem by the court, hence the decree of trial court is nullity in the eyes of law; that the respondent has filed the suit regarding the land measuring 4-kanal, whereas the learned trial court has cancelled the mutation No.1208 of whole land measuring 36-kanal while committing material illegality and irregularity; that the learned trial court did not consider the interest of minors while passing the impugned order and decree dated 17.06.2008 as no permission to effect the compromise was granted by trial court; that the learned appellate court without appraisal of record and without considering the law on the subject passed the impugned judgment dated 27.09.2008 in mechanical way. The learned counsel for the petitioners has placed reliance upon "Muhammad Sabeel Khan v. Muhammad Riaz Khan and 2 others" (PLD 1983 SC. (AJ&K) 13), "Muhammad Ali v. Naziran Bibi Bibi and 3 others" (1983 CLC 298), "Smt. Vidayabai and others v.
Moorajmal" (1980 SCM R 267), "Yar Muhammad v. Mst. Amnat and others" (1988 CLC 1355) & "Taj Din and another v. Mst. Mehr Mai and 7 others" (1997 SCM R 134).
5. Conversely, the learned counsel for the respondent argued that petitioners No.2 to 4 were sued in the suit through petitioner No.1 their real father and natural guardian, having no adverse interest against the minors and para-1 of the plaint regarding guardianship was admitted correct by the petitioners in written statement; that the suit property was transferred by petitioner No.1 in favour of petitioners No.2 to 4, his real sons through impugned mutation No. 1208 dated 24.08.2007 with mala fide intention in order to defeat the claim of the respondent; that Sh. Muhammad Iqbal scriber made statement on oath of Holy Quran according to the offer made by petitioners and the learned trial court has rightly decreed the suit; that concurrent findings by both the learned courts below have been passed in favour of the respondent and the revision petition is not maintainable. He placed reliance upon "Tanveer Mahboob and another v. Haroon and others" (2003 SCM R 480) & Obaid Asghar v. Farhat Shaheen" (1995 SCM R 865).
6. Arguments heard. Record perused.
7. The perusal of the record reveals that on the basis of statement of Sheikh Muhammad Iqbal scriber of disputed agreement to sell and receipt made by him on special oath of Holy Quran in response to the offer made by petitioner No. 1 on his behalf and on behalf of petitioners No. 2 to 4, the learned trial court decreed the suit of respondent for specific performance of agreement to sell dated 24.07.2006 against the petitioners and the appeal filed by the petitioners was dismissed and decree of learned trial court was upheld by the learned Appellate Court. The first contention of learned counsel for the petitioners is that Sheikh Muhammad Iqbal did not make statement on special oath of Holy Quran according to terms of offer made by the petitioners. I have scanned the record which shows that on 17.06.2008, when the case was fixed for evidence of the respondent, the petitioner No. 1 Shameem Haider being father and next friend of petitioners No. 2 to 4 made offer through statement before the court that if Sheikh Muhammad Iqbal scriber of agreement to sell takes oath on Holy Quran that he himself has drafted agreement to sell, the same is correct, the witnesses signed the agreement to sell in his presence and the parties admitted the receipt of amount of Rs. 1,50,000/- in his presence, then the suit be decreed otherwise, the suit of respondent be dismissed. As per record said offer was accepted by respondent Mehr Ali who made statement that Sheikh Muhammad Iqbal scriber of agreement to sell present in court is ready to take oath on Holy Quran according to offer of petitioners. Resultantly, Sheikh Muhammad Iqbal after taking oath on Holy Quran made statement before the learned trial court narrating therein that the agreement mark-A alongwith receipt are in his handwriting and bear his signatures and the same are correct and genuine. He further stated that the parties and the witnesses put their signatures and thumb impression in his presence, however, thumb impression of Mehr Ali son of Ghulam Muhammad witness was obtained while going to his house as parties were close relative. He further stated that the defendant/petitioner admitted the receipt of sale consideration in his presence. It is clear from the record that Sheikh Muhammad Iqbal after taking oath on Holy Quran has categorically stated that he drafted the disputed agreement to sell and receipt which bear his signatures and the same are correct and genuine. He has also clearly stated that parties and witnesses put their signatures and thumb impressions in his presence and the petitioner/defendant admitted the receipt of amount before him. He has not stated anywhere that the thumb impression of Mehr Ali son of Ghulam Muhammad was not affixed on the agreement and receipt in his absence. In these circumstances, there is no substance in the argument of the learned counsel for the petitioner that Sheikh Muhammad Iqbal did not make statement according to the terms of offer made by him.
The learned trial court rightly decreed the suit on the basis of statement of Sheikh Muhammad Iqbal.
8. The second contention was raised that no guardian ad-litem of petitioners No. 2 to 4 in the suit as necessitated under the provisions of Order XXXII, Rule 3, C.P.C. Was appointed by the learned trial court So far as, this contention is concerned, it is matter of record that the respondent filed instant suit against petitioners No. 1 to 4 and in the plaint the petitioners No. 2 to 4 were sued through petitioner No. 1 their real father as next friend and being real father and natural guardian the petitioner No. 1 had no adverse interest against petitioners No. 2 to 4.
9. The learned counsel for the respondent has placed reliance upon "Tanveer Mahboob and another v. Haroon and others" (2003 SCM R 480), wherein, the Hon'ble Supreme Court has been pleased to observe as under:- "13. Xxxxxxxxxxxxxxx We having considered the arguments canvassed by the learned counsel for the petitioners that the trial Court was not competent to proceed with the suit and pass the decree without appointing guardian ad-litem of Hassan Mahboob a minor defendant in the suit and petitioner in Civil Petition No. 117 of 2002 find no substance in it. Learned Single Judge and also the learned Judges of the Division Bench have extensively diluted upon this question with reference to the law laid down by the superior Courts on the subject in the sub-continent and we while affirming their view hold that no exception can be taken to the law laid down on the subject. We may add that in a case in which a minor defendant in the suit was represented by his father or brother or sister as co-defendant without any conflict of interest and such co-defendant sincerely and effectively defended the rights and interest of the minor in the property, it would be deemed that the rights were sufficiently safeguarded and mere fact that minor was not sued through guardian ad-litem would not make the decree invalid and the same would be binding on the minor. Reliance may be placed on Anandram v. Madholal (AIR 1960 Rajastan 1879) and Kameen Khan v. Ghazi Marjan (1990 M LD 1865).
In the present case, minor defendant Hasan Mahboob was sufttctently represented as observed by the learned Judges of the High Court, therefore, no prejudice was caused to him as his interest was throughout being watched properly by his co-defendants and a formal defect of not appointing guardian ad-litem of the said minor defendant would not effect the decree. It was held in Syed Ahmed v. Prafulla Kumar De (PLD 1961 Dacca 698) "that the non-recording of a formal order by the Court appointing the person as the guardian of the minor was at best an irregularity and the same was curable under section 99 of the Civil Procedure Code, 1908".
In Darshan Singh v. Kr. Maheshur Dayal (AIR 1935 Oudh 183) it was observed "that the minor was properly represented and omission of a formal order appointing the guardian was not fatal to the suit".
The non-fulfillment of formal requirement of appointment of guardian ad-litem of a minor defendant under Order XXXII, rule 3, C.P.C. Would not affect the proceedings in the suit and the decree if ultimately passed, unless it is shown that due to omission of appointment of guardian ad- litem of a minor, who was being represented by his natural guardian, the minor was caused prejudice and the objection would be only of technical importance.
10. In the instant case neither in the grounds of appeal nor in this revision petition the petitioners have alleged that petitioner No. 1 real father of petitioners No. 2 to 4 had any adverse interest against petitioners No. 2 to 4. It is established from the record that original owner of suit property was petitioner No. 1 who transferred the land measuring 36 kanal including suit land in favour of petitioners No. 2 to 4 his real sons through Mutation of Tamleek No. 1208 dated 24.08.2007.
Therefore, when suit property was transferred by petitioner No. 1 in favour of petitioners No. 2 to 4 his sons, it cannot be observed by any stretch of imagination that petitioner No. 1 had any adverse interest against petitioners No. 2 to 4 regarding the suit property. Hence in view of law laid down by the Hon'ble Supreme Court of Pakistan in the judgment supra, non-fulfillment of formal requirement of appointment of guardian ad-litem of petitioners No. 2 to 4 under Order XXXII, rule 3, C.P.C. Could not affect the proceedings in the suit and the decree dated 17.06.2008 passed by the learned Civil Judge, Mailsi.
11. The learned counsel for the petitioners while placing reliance upon "Muhammad Sabeel Khan v.
Muhammad Riaz Khan and 2 others" (PLD 1983 SC. (AJ&K) 13), contended that no sanction/leave of the court as contemplated by Order XXXII, rule 7 C.P.C. Was granted to effect compromise between the petitioners and respondent and in this way the interest of minors was not watched by the learned trial court which was condition precedent before effecting compromise. On the other hand, learned counsel for the respondent has placed reliance upon the judgment of august Supreme Court of Pakistan reported as "Obaid Asghar v. Farhat Shaheen" (1995 SCM R 865), whereby the Hon'ble Supreme Court has been pleased to observe that offer of oath made by next friend was only a special method of proof adopted by the next friend and was not in the nature of an agreement or compromise and, therefore, did not require sanction/leave of the Court as contemplated by Order XXXII, Rule 7, C.P.C. I would like to refer the paras No. 5 and 6 of this judgment as under:- "5. We have heard the learned counsel appearing in support of this petition. He has contended that as the next friend of the petitioner made the offer to have the case decided on the special oath of the father of the defendant who was an interested person, it was incumbent upon the former to have sought leave of the Court under Order XXXII, Rule 7, C.P.C. Before making such an offer. We find no merit in this contention. Law by now is fairly well-settled that the offer of oath as was made by the next friend of the petitioner in the instant case is only a special method of proof adopted by the next friend and is not in the nature of an agreement or compromise and, therefore, it does not require the sanction/leave of the Court contemplated by Order XXXII Rule 7, C.P.C. Refer "Muhammad Mahmud Chaudhry and others v. Behary Lal Saha and others," (AIR 1930 Calcutta 463) wherein it was held "The offer of the guardian of a minor defendant on behalf of the minor to abide by the deposition to be given by a plaintiff on a special oath stands on a very different ground from an agreement or compromise contemplated by Order 32, rule 7, and in such a case the minor is bound by the consent of his guardian although given without the leave of the Court provided there is no fraud or gross negligence on the part of the guardian." Again in the case reported as AIR 836 Lahore 235 Sultan Muhammad and others v. Mehr Khan and others, the view taken was that "when the next friend of a minor expressed willingness to be bound by the oath of a certain witness, it was not in, the nature of a compromise." "it was a method of proof which the next friend had adopted.
There was nothing illegal at all in that method. This view was followed in a Peshawar case reported in PLD 1966 Peshawar 137 wherein it was held that the offer of next friend of the minor to abide by the oath of the opposite-party on the crucial question involved in the suit was not in the nature of compromise but was method of proof, adopted by the next friend and no illegality was attached to that matter. The view expressed in these cases was approved by this Court in the case of Jaffer Abbas (supra) and it was held therein that the role of an outside to whom reference is made requiring him to make disclosure on oath on the matter in dispute is in the nature of a referee and his statement is an "evidentiary admission and form of proof and that the agreement of the parties for decision of the suit on the footing of the statement of the referee is not an "agreement or compromise" of such a character as would require leave of the Court under Order XXXII, Rule 7, C.P.C.
6. In the aforesaid view of the matter, we, are satisfied that Order XXXII, Rule 7, C.P.C. In terms had no application to the facts of the present case as no agreement or compromise had been effected between the parties. The statement of Raham Ali on special oath offered by the next friend of the minor was binding on the minor particularly when there was no allegation of negligence or collusion against the next friend. We have noted that the minor filed the appeal before the District Judge and the petition for leave to appeal in this Court through the same next friend who also represented him in the High Court."
12. In this case the statement was made by Sheikh Muhammad Iqbal on special oath of Holy Quran in response of the offer made by petitioner No. 1 the natural guardian and next friend of petitioners No. 2 to 4. Hence, in view of the principle laid down by the Hon'ble Supreme Court in the judgment referred supra the said statement made by Sheikh Muhammad Iqbal on special oath offered by petitioner No. 1, the natural guardian and next friend of petitioners No. 2 to 4 was binding on petitioners No. 2 to 4 as there is no allegation of negligence or collusion on behalf of petitioners No. 2 to 4 against the petitioner No. 1. Resultantly, this contention is also repelled.
13. The learned counsel for the petitioners has raised contention that agreement to sell alleged by respondent was to the extent of 4 kanal land, whereas, the learned trial court while decreeing the suit of respondent has illegally cancelled Mutation No. 1208 dated 24.08.2007 regarding 36 kanals land transferred in favour of the petitioners No. 2 to 4 through said mutation. This contention has some weight in it. The respondent in the plaint has alleged that petitioner No. 1 entered into an agreement to sell dated 24.07.2006 with him regarding land measuring 04 kanals bearing Khewat No. 40/40, Khatooni No. 106, Khasra No. 3/25, according to Register Haqdara zameen 2003-04. He further alleged that later on with mala fide intention petitioner No. 1 got transferred his land in favour of petitioners No. 2 to 4 through Tamleek mutation No. 128 dated 24.8.2007. The petitioners have placed on record copy of register Haqdaran Zameen for the year 2003-04, which shows that through mutation of Tamleek No. 1208 dated 24.08.2007, the petitioner No. 1 transferred his land measuring 36 kanals in favour of petitioners No. 2 to 4 in equal share. As the suit was filed by the respondent only to the extent of 4 kanal land, the learned trial court should have cancelled the mutation No. 1208 dated 24.08.2007 only to the extent of suit land measuring 4 kanal. The findings of the learned trial court for cancellation of Mutation No. 1208 dated 24.08.2007 regarding the land measuring 36 kanals as a whole are not sustainable under the law. The learned Appellate Court also did not notice this aspect of the case while dismissing the appeal of petitioner. Resultantly, I modify the findings of both the courts below in this respect and it is held that the tamleek mutation No. 1208 dated 24.08.2007 only to the extent of suit property measuring 4 kanals bearing Khewat No. 40/40, Khatooni No. 106, Khasra No. 3/25 is cancelled, whereas, said mutation to the extent of remaining land transferred in favour of petitioners No. 2 to 4 will remain intact.
14. For the foregoing reasons, I partially accept this civil revision and resultantly the decree of the learned trial court dated 17.06.2008 is modified in the terms that Tamleek Mutation No. 1208 dated 24.08.2007 only to the extent of suit property measuring 4 kanals bearing Khewat No. 40/40, Khatooni No. 106, Khasra No. 3/25 is cancelled, whereas, said mutation to the extent of remaining land transferred in favour of petitioners No. 2 to 4 will remain intact. The parties to bear their own expenses.