' The dispute involved in the instant appeal relates to land measuring 190 kanals situate in village Dowgal, Tehsil Daska, District Sialkot. The land belonged to Gul Muhammad who sold it to the appellants-vendees for an ostensible sale price of Rs, 4,50,000 through a registered sale-deed dated 7-4-1976.
2. The respondent (plaintiff) being a son of the vendor pre-empted the sale.
3. The suit was resisted by the appellants-vendees on various grounds such as limitation, suit being for partial pre-emption, plaintiff having no superior right of pre-emption, ostensible sale price of Rs, 4,50,000 having been fixed in good faith and actually paid, suit having not been properly valued for purposes of court-fee and jurisdiction and vendees having made improvements over the suit land.
4. The learned Civil Judge framed the necessary issues arising out of the parties' pleadings. The parties led evidence in support of their respective contentions before the learned trial Court.
5. The learned Civil Judge vide his judgment dated 28-11-1979 decreed the suit in favour _ of the respondent-pre-emptor on payment of Rs, 3,77,100.
6. The appellants-vendees preferred appeal before the learned District Judge, Sialkot, challenging the findings recorded by the learned Civil Judge on all the issues.
7. The appeal remained pending before the lower appellate Court from 9-12-1979 till 28-1-1982.
During the intervening period the matter was adjourned for arguments on different dates of hearing for one reason or the other.
8. On 28-1-1982 Faqir Hussain, respondent-pre-emptor made a statement making an offer to the effect that if Allah Mahi one of the appellants-vendees stated on oath by holding the Holy Quran in hands that the sale price amounting to Rs, 4,50 000. Was actually paid and no amount out of the same was returned, he (pre-emptor) was prepared to pay the said amount of Rs, 4,50,000 to the appellants and the decree could be amended accordingly.
9. Allah Mahi, one of the appellants also got recorded his statement on the same day that he was prepared to make the proposed oath. Subsequently on the same day joint statement of the respondent (pre-emptor), Allah Mahi and Nazir Ahmad two of the appellants and of the parties' counsel was recorded to the effect that Allah Mahi had made the proposed oath in Court as offered by the pre-emptor and thus the matter was compromised and that the appeal should accordingly be partly accepted and decree for possession of the suit land on payment of Rs, 4,50,000 be passed in favour of the pre-emptor and against the appellants. Parties be left to bear their own costs.
10. After recording the aforementioned joint 'statement of the preemptor, two of the vendees and the parties' counsel the learned Additional District Judge who was seized of the appeal, vide his order dated 28-1-1982 allowed the appeal partly on the basis of the aforementioned statement and passed a decree for possession of the suit land by preemption on payment of Rs, 4,50,000 in favour of the respondent and against the appellants.
11. The present appeal is directed against the said order dated 28-1-1982 passed by the learned Additional District Judge, Sialkot. It has been called into question on the sole ground that Ghulam Abbas, one of the appellants, happened to be a minor but the learned Additional District Judge before passing the impugned judgment and decree did not consider as to whether the proposed compromise was for the benefit of the said minor or not although it was obligatory for him to do so by virtue of the provisions of Order XXXII, rule 7 of the C. P. C.
12. The lower Courts' records have been carefully gone through. There is nothing on record to suggest that while passing the impugned judgment and decree the learned lower appellate Court took care of the provisions of Order XXXII, rule 7. Of the C.P.C. In so far as Ghulam Abbas a minor appellant is concerned. It has not been denied by the learned counsel for the respondent either that before making the impugned order the learned Additional District Judge did not take into consideration the requirements contained in the provisions of Order XXXII, rule 7, ibid. He, however, urged that in the circumstances of the case such requirements were not needed to be taken care of In Smt. Vdayabai and others v. Moorajmal it has been ruled that principle of equity enshrined in rule 7 of Order XXXII, C. P. C. Should be followed. In Mst. Mohbat Bi v. Qasim Ali and others it has been held that it was bounden duty of Court to see that compromise effected was in the interest of the minor. An order passed in disregard of the provisions of Order XXXII, rule 7, C.P.C. Was thus set aside. In Subramanian Chettiar v. Raja Rajeswar Doral and others their Lordships of the Judicial Committee of the Privy Council observed :- "The provision making it necessary to obtain the leave of the Court to enter into compromise on minor's behalf, is of great importance to protect the interests of a minor. In such a case it is not sufficient that the terms of a compromise are before the Court. There ought to be evidence that the attention of the Court was directly called to the fact that a minor was a party to the compromise and it ought to be shown by an order on petition, or in some way not open to doubt, that the leave of the Court was obtained."
' In Mahatab Singh and others v. Raja Durga Narain Singh and another it was held that a compromise arrived at by a guardian ad litem and next friend without complying with the provisions of rule 7 of Order XXXII, Civil Procedure Code was not only fatal but was void altogether.
Similar view has been taken in Mst. Sajida Sultana and another v: Messrs Eastern Traders and 3 others and in Arif Yazdani and anothers v. Sheikh Abdus Salam and others.
13. It has been vehemently argued on behalf of the respondent that in the circumstances of the instant case the appellants in fact relinquished their claim so far as the issues other than sale price1 2 3 4 5 6 were concerned while in regard to sale price their claim in full was allowed and thus there. Was no necessity of passing of an express order under rule 7 of Order 32 of the Civil Procedure Code.
Reliance has been placed on Abad All v. Muhammad Siddique and another In this case it has been held that the abandonment or giving up an issue on part of next friend or guardian ad litem in course of conducting of the suit did not amount to compromise within the meaning of rule 7 of Order XXXII of the Civil Procedure Code and it was not necessary for next friend or guardian ad litem to obtain sanction of the Court under rule 7 of Order XXXII. In Sultan Muhammad and others v.
Mehr Khan and others it was ruled that if the next friend of a minor expressed his willingness to relinquish the claim of the minor, pursuant to an oath of the opposite-party, it was only a special method of proof adopted by the next friend and was not a compromise.
' On merits however, the contention raised by the learned counsel for the respondent is devoid of any merit, inasmuch as in the circumstances of the present case there has been no abandonment of issue/issues. The impugned judgment and decree are based on compromise pure and simple.
The respondent-pre-emptor as well as Allah Mahi and Nazir Ahmad appellants, as also their counsel in their joint statement recorded on 28-1-1982 expressly stated that pursuant to Allah Mahi having made the proposed oath the matter was compromised between the parties. The impugned order is based on this statement and the compromise.
14. In the light of what has been said above it is concluded that while passing the impugned judgment and decree based on compromise the learned lower appellate Court did not take into consideration the interest of Ghulam Abbas, a minor appellant, as required under Order XXXII, rule 7 of the C.P.C. The impugned judgment and decree are, therefore, void so far as Ghulam Abbas, minor is concerned. As the sale in favou of the appellants is indivisible, therefore, the impugned judgment and decree are not valid in toto.
15. While arguing the case the learned counsel for the respondent contended that the memorandum of appeal in this case was not properly stamped for the purposes of court-fee. He maintained that in this case under Article 12 of Schedule I of the Court-Fees Act like plaint ad valore court-fee was required to be paid on the memorandum of appeal. The value of the subject-matter of litigation, according to him, was a few lac of rupees but the Court Fee of Rs, 10 was paid on the memorandum o appeal and thus the appeal was not competent and could not be take into consideration as provided in section 28 of the Court-Fees Act. That contention appears to be erroneous inasmuch as Article 12 of Schedule I is applicable in cases of memorandum of appeal not otherwise provided for in the Court-Fees Act.
' The present appeal is governed by Article 11 of Schedule 2, Mid bein a first appeal against the order to the High Court, In case of memorandum of such appeal a fixed Court-Fee of Rs, 10 is required to be paid. Uncle Order XLIII, rule 1 (m) appeal is competent against an order under rule of Order XXI1I recording a compromise.
16. In Muhammad Rashid and another v. Rehmatullah it was found that pursuant to submission of a deed of compromises submitted guardian ad litem of the minor respondent if the Divisional Judge was the opinion that the compromise was for the benefit of the minor and sanctioned it and passed a decree in accordance therewith, the order of theDivisional Judge was one directing the compromise to be recorded within the terms of Order XXIII, rule 3 and an appeal against it was competent under clause (m) of rule 1 of Order XLIII, notwithstanding that the order directed at the same time that a decree be passed in accordance with the compromise and that such a decree was accordingly passed.
17. For the foregoing reasons the objection raised by the learned counsel for the respondent on the question of Court-Fee is set aside.
18. In the light of what has gone above, the appeal is accepted and the judgment and decree passed by the learned Additional District Judge are set aside and the case is remanded to the said7 8 9 learned Court for its disposal in accordance with law. The disposal of this appeal has already been sufficiently delayed before the learned lower appellate Court. It is hoped that the same will be disposed of within three months.
19. The parties are left to bear their own costs. 1980 SCMR 267 1980 CLC 1642 A 1 R 1915 P C 33 AIR 1936 All. 811 PLD 1971 Kar. 109 PLD 1957 (W. P.) Lab.983. PLD 1968 Lah. 1218 A 1 R 1936 Lah. 235 96 Pb. Rec. 1914