' This first appeal is from the order dated 5th April, 1972 of the District Judge, Jhang, whereby he set aside the judgment and decree dated 16th May, 1971 of the Civil Judge, Chiniot, and remanded the suit to the trial Court for a fresh decision in accordance with law.
2. The case of the appellants is that one Shakir Hussain, predecessor-in-interest of the respondents, was the owner of the suit land measuring about 104 kanals in village Bhawana of Tehsil Chiniot in District Jhang. He has appointed Syed Iftikhar Hussain as his general attorney. On 19th January, 1965 Syed lftikhar Hussain sold the suit land to appellant No, 1 for a sum of Rs, 18,500 and after receiving Rs, 12,000 on account of the sale price placed appellant No, 1 in possession thereof. Subsequently on 7th April, 1965 and 7th June, 1965 he received two further sums of Rs, 5,000 and Rs, 1,500 respectively. Later, it transpired that he had not been authorised by Shakir Hussain to dispose of his immovable property. Upon this Shakir Hussain personally stepped in and ratified the sale transaction. For this purpose he appeared before the local Patwari and had the rotation of the sale recorded. Since appellant No, 2 had provided half of the sale price, therefore, at the instance of appellant No, I her name was also entered in the mutation register as one of the vendees. However, before the mutation could be attested Shakir Hussain died.
3. After the death of Shakir Hussain the respondents repudiated the sale. The repudiation forced the appellant to bring a declaratory suit in respect of their title to the suit land. In the meanwhile, according to the appellants, the respondents regained possession of the suit land with the assistance of the local revenue staff. Consequently, they withdrew the declaratory suit and brought the present suit which is one for possession of the land in dispute.
4. Respondent No, 2 was a minor at the time of the institution of the present suit and continues to be so till today. He was, therefore, sued through his paternal uncle respondent No, I. Along with the plaint the appellants also filed an application as provided by rule 3 of Order XXXII, Code of Civil Procedure, as amended by the Punjab High Court, giving a list of the relatives of respondent No, 2, in which a prayer was made that respondent No, 1 should be made the guardian ad litem of respondent No,
2. It does not appear from the record that the trial Judge made any order on his application. However, that may be, the respondents filed a joint written statement. It was signed by Nusrat Ali the general attorney of respondents Nos. 1 and 2 both on their behalf as well as on behalf of the minor. It did not contain any objection to respondent No, l's being made the guardian ad litem of respondent No, 2.
5. In their defence the respondents inter alla challenged the genuineness of the alleged sale transaction and denied that their predecessor-in-interest Shakir Hussain, had ever ratified the same. On the pleading of the parties as many as 10 issues were framed. The suit was fixed for the evidence of the appellants on 15th February, 1971. On that date Pir Iftikhar Ahmad Zaheer, counsel for the respondents, made the following statement : - "Iftikhar Hussain son of Bashir Hussain who is present in Court has been the Mukhtar of Shakir Hussain deceased. The defendants will pay to the plaintiffs, within the period to be fixed by the Court the amount which Iftikhar Hussain may swear on the Holy Qur'an to have been received on account of the property in dispute from the plaintiffs. On the payment of the said amount the suit should be dismissed but if the said amount is not paid within the period fixed the suit should be decreed. The parties will bear their own costs.
' This statement was signed by Pir Iftikhar Ahmad Zaheer as well as by Nusrat Ali. The offer contained in the statement was accepted by the appellants as well as by lftikhar Hussain.
Accordingly, Iftikhar Hussain, took an oath on the Holy Qur'an and stated that he had received Rs, 18,500 from the plaintiffs for the sale of the land in dispute. In accordance with the agreement between the parties the trial Judge fixed 30th March, 1971 as the last date for the payment of the amount by the plaintiff. On 22nd February, 1971 the respondents made an application to the trial Court wherein a prayer was made that the agreement to get the suit decided on the oath of lftikhar Hussain should not be given effect. Apart from pleading the minority of respondent No, 2 they also took up the position that they had never authorised their special attorney Nusrat Ali to get the suit deeided on the oath of Iftikhar Hussain. This application was rejected by the trial Judge who on the failure of the respondents to deposit the amount of Rs, 18,500 within the period fixed decreed the suit of the appellant in its entirety.
6. The respondents took an appeal from the decision of the trial Court to the District Judge, Mang.
The learned District Judge thought that since one of the respondent was a minor and the prior permission of the Court had not been obtained the agreement to get the suit decided on the oath of a third person was void, as it was in violation of the provisions of rule 7 of Order XXXII, C. P. C. The said rule provided that before a next friend of a minor entered into an agreement he must obtain the permission of the Court. Accordingly, the learned District Judge set aside the judgment and decree of the trial Court and directed that the suit should be decided afresh. Against this order the appellant have come to this Court.
7. Mr. Asghar All who appeared on behalf of the appellant contended that the learned District Judge was in error in holding that the agreement to get the case decided on the oath of a third person was an agreement within the meaning of sub-rule (I) of rule 7 of Order XXXII, C. P. C. He submitted that all that the parties had agreed to was to adopt a special mode of evidence and as such the agreement in this regard was not of the nature envisaged by the said sub-rule. In support of this contention he referred to Niaz Ali v. Yasin and Sultan Muhammad v. Mehr Khan. These authorities no doubt support the contention of the learned counsel. Quite obviously, the agreement1 2 or compromise referred to in the sub-rule has to be of nature which affects the substance of the dispute, and not which is of an incidental or procedural nature. Thus, in interpreting section 462 of the old Civil Procedure Code which corresponds to the present sub-rule, a Full Bench of the Punjab Chief Court in Malik Sohrab v. Mokh Raj observed :- "The function of a next friend is to conduct the case of the minor in Court, and presumably, he is competent to do all that is usually incidental to the conduct of a suit in Court, without resorting to the Court at every step in the proceedings, though such a presumption may arise in respect to unusual proceedings. It is difficult to suppose that the leave of the Court is to be sought before the next friend can enter into an agreement with a pleader to appear, plead and act, on behalf of the minor, or agree to an adjournment, or to admit particular facts without proof, under section 58 of the Evidence Act, or to admit the genuineness of documents, so as to the dispense with formal proof. And there is certainly no group for holding that the next friend must require the leave of the Court as to the witness to be called, on the documents to be produced, as evidence for the minor.
On the other band, there are agreements in reference to suit, especially those which tend to withdraw the suit from decision by the Court, to which the leave of the Court may properly be regarded as requisite such are, an agreement to refer to arbitration or an agreement contemplated by section 375, Civil Procedure Code, whereby the suit is adjusted wholly or in part."
8. The Full Bench also took the view that an agreement to abide by the oath of another party to the suit was not one for which the permission of the Court was needed under section 462, because it was merely an agreement with respect to the evidence to be given in the suit, a matter which was left generally to the discretion of the next friend, and not subject to the control by the Court. This view was followed by Agba Hyder, J. In Sultan Muhammad v. Mehr Khan, ibid, where under similar circumstances. It was held that an agreement to have the case decided on the oath of another person was not an agreement within the contemplation of sub-rule (I) of Rule 7 of Order XXXII.
Shakir Ullah Jan, J. In Niaz All v. Yasin followed the view expressed by Agha Hyder, J. In the face of these authorities I do not think that the A learned District Judge was justified in holding that the agreement in the present case was hit by the bar contained in sub-rule (1) of the rule 7 of Order XXXII.
9. There is another aspect of the matter also which seems to have been ignored by the learned District Judge. Before decreeing the suit of the appellants the learned trial Judge did consider whether the agreement was in the interest of the minor. It is to be observed that the respondents have not taken up the position before me that the finding of the trial Judge in this regard was open to question. Now sub-rule (1) of rule 7 does not specify the exact stage at which the guardian ad litem is to apply for the permission of the Court for B entering into an agreement or a compromise on behalf of the minor. The permission can be granted even after the agreement has been entered into. To hold otherwise may in many cases deprive the minor of the benefits of an agreement which is manifestly to his advantage. It is to be noted that an agreement which a guardian ad litem enters into on behalf of the minor is not ab initio void but only voidable. Thus, an agreement which is to the advantage of the minor can be given effect even though Court's permission was not obtained before entering upon it.
10. On behalf of the respondents, it was contended that as the trial Court had not made any formal order appointing respondent No, 1 as the guardian ad litem for respondent No, 2 the whole proceeding before the trial Court were void. In support of this contention reference has been made to rule 3 of Order XXXII. I do not find any force in this contention. It is true that the learned trial Judge should hay passed a formal order appointing respondent No, 1 as guardian ad litem, for respondent No, 2, but his failure in this regard can in the circumstances of this case be regarded only a mere irregularity. It is common ground that interests of respondent No, 1 in the suit were identical with these of respondent No,
2. In the plaint it was unequivocally stated that respondent3 No, 2 was being sued through respondent No,
1. This position was never repudiated by respondent No, 1 and the fact that he filed a written statement on behalf of respondent No, 2 as well clearly indicates that he had accepted this assignment. He was the close male relative of respondent. No, 2 and the most appropriate person to look after his interests. It cannot, therefore, be said that the entire proceedings stand vitiated just because the trial Court failed to make a formal order appointing him as the guardian ad litem for respondent No, 2.
11. It is also contended on behalf of the respondents that Nusrat Ali did not have the power to enter into an agreement on behalf of the respondents for getting the suit decided on oath.. I have seen the special power-of-attorney which was executed by respondents Nos. I and 2 in favour of Nusrat Ali. The relevant extract from this power-of-attorney reads as follows :- "We the above executants, do hereby constitute, nominate, Mr. Nusrat Ali ..As our true and lawful general attorney in our name and on our behalf and fully authorise and empower him to appear, plead, etc. And represent us in all the civil, criminal, revenue and rehabilitation offices and courts upto the High and Supreme Courts of Pakistan in connection with our landed property situate in Mauza, Thana Bhawana Tehsil Chiniot, District Jhang. "
"We empower our general attorney to make representations on our behalf, to file criminal and civil cases, to verify plaints written statements, miscellaneous applications, apply and obtain true replies, deposit and withdraw money, engage advocates sign their powers, pay necessary fees, appoint any special attorney to enter compromise, refer the matter in dispute to arbitration and to accept their awards, to dispose and give statements or swear affidavits, to file execution proceedings and get the decree executed."
In view of the very wide terms used in this document I have no hesitation in holding that Nusrat Ali had the power to enter into the sort of agreement on behalf of the respondents which he did in this case The authority cited by the respondents, namely, Muhammad Din v. Fazal-ur-Rehman has obviously no application here.
12. For the reasons stated above, I am of the view that the learned trial Judge was justified in acting upon the agreement which had been voluntarily entered into between the parties or getting the case decided on the oath of Iftikhar Hussain. I, therefore, set aside the order of the learned District Judge and restore the judgment and decree of the trial Court. The appellants shall also have their costs throughout. PLD 1966 Pesh. 137 AIR 1963 Lab. 23562 18 P R 1891 PLD 1954 Pesh. 61