The facts giving rise to this writ petition are that respondent No. 1, Maqbool Ahmed, filed a suit against the petitioners, Arshad Mahmud and others, ,and respondent No. 2, Abdus Sattar, for possession of certain land through pre-emption. The petitioners are brothers of respondent No. 2.
As the petitioners were minors and respondent No. 2 was major, the said respon--dent was appointed as their guardian ad litem. The parties agreed to decide the suit on the basis of a special oath to be made by the son or brother of respondent No. 1 in regard to the actual price paid by him for the disputed land. The prescribed oath was made by his son and thereupon the suit was decreed on payment of Rs. 15,000. The judgment and decree of the trial Court were assailed by the petitioners by taking a revision petition before an Additional District Judge but without success.
They have, therefore, invoked the Constitutional jurisdiction of this Court.
2. It was urged by learned counsel for the petitioners that since the petitioners were minors, the compromise in question could not be Entered into by their guardian ad litem, namely, respondent No. 2, without the permission of the trial Court and as he did not make any application in this behalf the judgment and decree passed by the learned trial Court in pursuance of the said compromise were without lawful authority. In this connection, be placed reliance on the provisions of Order XXXII, rule 7 of the Code of Civil Procedure.
3. In view of the submissions made by learned counsel. It was directed by me that the record of the case be requisitioned with a view to finding out if the application referred to above was made before the Civil Judge who had decided the suit. The case was, therefore, fixed for today to await the record. Today, Sh. Karamat Nazir Bhandari, Advocate, entered appearance on behalf of respondent No. 1, in response to the notice issued to him (respondent No. 1) in connection with the interim relief claimed by the petitioners. He conceded that no application was made by respondent No. 2 for obtaining permission of the trial Court for entering into compromise on behalf of the petitioners. 1t was, however, pointed out by him that according to the impugned order, the learned trial Court had granted the requisite permission to him and thus the requirement of Order XXXI1, rule 7 of the Code of Civil Procedure had been fulfilled. His submission was that it was not necessary to make an application in the matter. He placed reliance on Niaz Ali v. Yasin and others
(1) and Fatima BIN and 7 others v. Jamilur Rehman (2) to support his arguments.' It was also suggested by him that since the non-submission of the application for securing the aforementioned permission had been conceded by him, there was no need to summon the record.
Accordingly, I have decided not to resummon the record which has not been received today.
4. Annexure "A" is copy of the judgment of the learned Civil Judge whereby the suit was decided in terms of the compromise in question. This clearly shows that respondent No. 2 was permitted to enter into the compro--mise as, according to the learned Civil Judge, it was in the interest of the plaintiffs who were minors. Respondent No. 2 and the petitioners had common interest inasmuch as they were all defendants in the pre-emption suit and respondent No. 2 did not get anything more than any one of the other petitioners. Respondent No. 2 is real brother of the petitioners and presumable he could not think of doing any harm to them especially when the petitioners were his younger brothers. The trial Court had, in so many words, allowed respondent No. 2 to enter into the compromise on behalf of the petitioners. This, to my mind, amounts to sufficient compliance with the requirements of Order XXXII, rule 7 of the Code of Civil Procedure.
(1) PLD 1966 Pesh. 137(2) PLD 1982 Quetta 7
5. As for the failure of respondent No. 2 to make an application for securing permission to enter into compromise on behalf of the petitioners, learned-counsel for the petitioners did not cite any authority for the proposi--tion that non-submission of that application would invalidate the permission accorded by the said Court. It has also not been laid down in Order XXXII, rule 7 of the Code of Civil Procedure that the Court cannot accord permission unless it is prayed for by means of an application. The said provisions of law ordain that before the compromise entered into on behalf of a minor is given effect to, the Court should ensure and declare that the compromise is beneficial for the minor; and this was actually done, by the learned trial Court, in the instant case. I do realise that the order of the Court in this behalf is generally obtained by making an application but if in any case the order is made otherwise, it cannot be struck down just for the reason that it was not secured by means of an application. In this view of the matter, the non-submission of an application for permission to compromise on behalf . Of petitioners is of no consequence.
6. There is no merit in this writ petition. It is dismissed in limine.