' RAJA MUHAMMAD KHURSHID KHAN, ACTG. C. J.-The brief facts resulting in the present appeal, by leave, are that the father of Mohammad Riaz, respondent to this appeal, transferred the land measuring 11 kanals 5 marlas for an ostensible consideration of Rs, 18,000 by way of a. Registered sale-deed dated the 25th of August, 1976. Mohammad Riaz (minor at that time) through Mohammad Aziz, his next friend, respondent herein, sought to pre-empt the suit land in the Court of Sub-Judge, Bagh. The decree was claimed on payment of the wholesale consideration.
2. After the conclusion of the trial, the case was fixed for arguments, for 24-6-1978 but earlier to that date on 12-6-1978 Mohammad Aziz, the next friend of minor (plaintiff), having compromised the cause with Mohammad Sabeel Khan (vendee) wanted the Court to allow him to withdraw from the prosecution of the suit and moved an application for the purpose. The withdrawal from the prosecution of the suit was requested, inter alia, on the grounds-
(i) that in case decree in favour of Mohammad Riaz minor (plaintiff) is passed, the minor would not be able to deposit the decretal amount which would terminate the proceedings in the rejection of the suit with costs ; and to save the minor from the costs the compromise, it is claimed, is in the interest and benefit of the minor ; (ii)that he would receive an amount of Rs, 6,000 (six thousand) from the vendee as costs of the suit.
3. The learned Sub-Judge, after recording the statement of the next friend, opined that the compromise and withdrawal of the suit is in the interest and benefit of the minor and permitted the next friend to withdraw from the prosecution of the case. Mohammad Aziz was also paid an amount of Rs, 6,000 as costs of the suit.
4. This withdrawal order, however, in revision was vacated by the learned Single Judge of the High Court vide order dated 15-10-1979. Hence this appeal by leave to assail the said judgment of the High Court.
5. Leave to appeal was granted to the appellant (vendee) to consider the following points:-
(I) Whether the withdrawal order was appealable under Order XLIII, rule 1 (m) of the Code of Civil Procedure and the revision petition before the High Court was not competent ;
(ii) whether Mohammad Yaqoob, who filed the revision petition before the High Court as next friend of the minor, could not assume such a role without the leave of the Court ; and
(iii) whether even otherwise the compromise was effected by Mohammad Aziz in the interest of minor and the learned Judge misdirected himself to set aside such compromise.
' On point No, (i) Mr. B. A. Farooqi, the learned counsel for the appellant, has diverted or attention to Order XLIII, rule 1, C. P. C. To make us believe that an order of withdrawal, based on compromise recorded under Order XLIII, rule 3, C. P. C., is appealable and revision petition before the High Court was not competent and, therefore, the order passed by the High Court in revision warrants its quashment.
6. We proceed to determine point No, (i) listed above. Let us first examine the scope of Order XLIII, rule 1, C. P. C. Vis-a-vis section 115, which deals with appeals and revisions. The words "no appeal lies thereto", used in section 115, C. P. C., can be said to bar the High Court to exercise the revisional jurisdiction. Under some other provisions of the Code of Civil Procedure an appeal is competent under section 115, C. P. C. According to one view it is limited to those cases where under the Code of Civil Procedure no appeal, either in the first instance or eventually, would lie to the High Court. There is a second view that the words "no appeal lies thereto", occurring in section 115, C. P. C., refers to cases in which no appeal lies to the High Court and that they do not exclude the revisional jurisdiction of the High Court if appeal lies to first appellate Court and not to the High Court. For the reasons to follow we prefer to follow the first view.
7. We have three decisions in support of the second view-S. Ghulam Shahbaz Shah v. Ch. Mohammad Sadiq (1), Abdul Wahid v. Allah Din (2), Abdur Rashid v. Abdur Rahim (3). These decisions were overruled by a subsequent decision by the Supreme Court of Pakistan in Municipal Committee v. Aziz Ellahi (4). The learned Chief Justice Mr. Hamoodur Rehman (as he then was) wrote the main judgment after examining the decisions-Radha Ram Datt v. Abbas Ali Biswas and others (5), Maharaja Bahadur Ram Ran Bijay Prashad Singh v. Kishun Singh and others (6), tt.
Manmohan Lal and others v. B. Rai Kumar Lal and others (7), Paruchusu Satyanaryanacharyulu v.
Vannava Ramalingam (8), Swarupnarain v. Gopinath and others (9) and Custodian of Evacuee Property, New Delhi v. Nasiruddin and others (10). At page 512 it was observed in this case (PLD 1970 SC 506) as under :- "From the above analysis I have come to the conclusion that the trend of judicial opinion is now to the effect that if a decree or an order, which is in the nature of a decree under the Code of Civil Procedure, has been passed by the Court of first instance, and it is appealable under the Code, then, whether the appeal lies immediately to the High Court or only after another appeal has been taken before the District Judge, the revision would not be competent."
(Underlining is ours).
' The reasoning advanced by Mr. Justice Hamoodur Rehman is based on sound legal principle. We, in all respect, are in total agreement with Mr. Justice Hamoodur Rehman. This case settles the controversy as regard to the interpretation of the phrase "in which no appeal lies thereto" occurring in section 115, C. P. C. Therefore, in or view, in the instant case an appeal under Order XLIII, rule 1, C. P.
C. Against the order of withdrawal, made by the learned Sub-Judge, Bagh, was competent and a revision as of right was not permissible. This answers the first point listed above. Let us see its effect. {FOONOTE}}
(1) PLD 1959 B J 10
(3) PLD 1959 Lah. 806(2) PLD 1960 Kar. 472 (4) P L p 1970 SC 506 (6) AIR 1944 Pat. 54 (8) AIR 1952 Mad. 86 (10) AIR 1962 Pb. 218
(5) AIR 1931 All. 294
(7) AIR 1946 All. 89
(9) AIR 1953 Raj. 137 [Mere in italics']
8. We have here also the Azad Jammu & Kashmir Courts and Laws Code Act, 1949, which invests the High Court with authority of superintendence and control over the Courts subordinate to it.
Section 35 of the Courts and Laws Code Act, 1949, gives wider powers of superintendence and control over all Courts subject to the appellate and revisional jurisdiction of the High Court. It further empowers the High Court to give directions in matters not provided for by law as may be necessary to secure the due administration of justice. The prerogative and privilege of the High Court to superintendence and control subordinate Courts is quite independent and in addition to the powers of the High Court under section 115, C. P. C. This right imposes a corresponding duty to see that Courts subordinate to it do not invade vested rights of subject by usurping jurisdiction. This view is supported by authorities as well. In Brindaban Chander Choubey v. Gour Chandra Ray and others () it was observed : "It is the privilege and prerogative of a High Court, once a record is before it which is erroneous and so erroneous as manifestly to amount to an injustice, to exercise its powers of superintendence to revise such order, or set it aside and direct such further proceedings to be taken as justice may require."
' Therefore, in or view, the High Court in exercise of the powers of superintendence and control over the subordinate Courts under section 35 of the Azad Jammu & Kashmir Courts and Laws Code Act, 1949, was competent to revise the order.
Even otherwise too, it is not a case of total lack of jurisdiction. The High Court was competent even otherwise to exercise the revisional jurisdiction and we cannot find fault with the order simply on the ground that the order is defective, if the order can be saved under some other provisions of the law and does not suffer from total lack of jurisdiction. Reference may be made to Sulaiman V.
Khurshid (2). In this case it has been observed :- "Where a Court does not lack in its inherent want of jurisdiction, but the procedure or mode of hearing, it adopts, is defective or irregular and in such a position a party joins issues and participates in the proceedings without raising any objection on such defect or irregularity touching upon the jurisdiction ; later on it cannot be allowed, to challenge the jurisdiction when the result of the proceedings goes against it."
After settling the question that High Court was competent to exercise its revisional powers independent of section 115, C. P. C., let us see as to whether the High Court has righty exercised its revisional jurisdiction in vacating the order of the sub-Judge. Order XXXII, rule 7, C.P.C. Provides that no next friend or guardian for the suit shall without leave of the Court expressly recorded in the proceedings enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. Mohammad Aziz submitted an application in the Court for leave for effecting the compromise with the vendee that the minor was not in a position to pay the pre-emption money and thus he may be allowed to give up the suit. The permission was accordingly granted. On that very date the statement of Mohammad Aziz was also recorded in which he stated that he had compromised with the defendants and prayed that in accordance
(1) AIR 1920 Pat. 568 (2 ) 1982 CLC 2511 with the compromise he may be allowed to give up the suit and receive Rs, 6,000 as costs of the suit, which amount was paid to him in the open Court.
9. It is to be seen as to whether the compromise is in the benefit of the minor. The order of the Court recorded on the date reads :{{URDU TEXT}} .{{URDU TEXT}} ' Order XXXII, rule 7, requires the Court to carefully examine compromise, consider propriety of the same in the interest of minor and to declare in clear words that compromise is in the benefit of the minor. In the instant case the interest is not in granting leave to give up the minor.
' The reason advanced in the petition for obtaining leave and the reasons recorded by the trial Court while granting leave, as are apparent from the record, are that minor would not be able to pay the pre-emption money, and may be burdened with costs. We regret we cannot agree with the trial Judge.
10. The trial Court had nothing before it to hold so except the bare statement of Mohammad Aziz, next friend, who was effecting the compromise with the vendee. It was alleged in the plaint that the sale consideration of Rs, 18,000 was correctly made in the sale-deed and the plaintiff is prepared to pay the same. The learned Sub-Judge failed to satisfy his conscience that the compromise was for the benefit of the minor. The trial Court in all fairness of the minor should have issued a notice to him in order to ascertain and to be satisfied that the plaintiff was really not in a position to pay the pre-emption money. There are some cases to the effect that an affidavit by the guardian setting forth the terms of the compromise and how they are beneficial to the minors is to be filed. While there are other cases wherein it has been held that there should also be an opinion of the counsel or a statement of the counsel at the bar that the compromise is a proper one and would be in the interest of the minor, AIR 1929 Born. 350, AIR 1930 Cal. 539, AIR 1935 Sind (?) and AIR 1941 All. 431 may be referred on the point. In AIR 1929 Bom. 350 it has been held that "in heavy cases there should be an opinion of counsel, or else a statement by counsel at the bar that in his opinion the compromise is for the benefit of the minor". In AIR 1930 Cal. 539 it has been observed that "if the facts are not elucidated by evidence given in the case an affidavit by the guardian-act litem setting forth the outline of the facts of the position and the general consideration in favour of the compromise should in general be required". In AIR 1941 All. 431 it has been held that "in the case of an application for compromise on behalf of a minor, besides the statement by the minor's counsel that the proposed compromise is for the minor's benefit the guardian himself should file an affidavit stating that he too has considered the matter on behalf of the minor and considers the proposed compromise to be for his benefit".
11. Minors are always considered to be wards of the Courts and while sanctioning any compromise on their behalf the Courts have to be on their guard and satisfy themselves that the proposed agreement or compromise is for the benefit of the minors. For the same reason in AIR 1922 P C 186 and AIR 1937 P C 35 the Privy Council when called upon to grant leave to compromise on behalf of the minors called for a certificate from the High Court concerned that the proposed compromise was really in the interest and for the benefit of the minors.
12. No inquiry was made as to whether the compromise was for the benefit of the minor. The learned Sub-Judge had, in fact, no material before him to say that the compromise was for the benefit of the minor except the statement of Mohammad Aziz, the next friend, about whom it is admitted he has accepted Rs, 6,000 from the vendee. There exist preponderance of probability that the next friend has bartered away the interest of the minor. Our opinion in the circumstances is that the learned Sub-Judge has not exercised his discretion judicially and the High Court has very rightly disturbed the order of the learned trial Judge.
Next we take up the point as to whether Mohammad Yaqoob was competent to move the High Court in revision. It has been argued by the learned counsel for the vendee-appellant that it was Mohammad Aziz, the original next friend, who could move the High Court in revision and Yaqoob was not so competent. We agree that Mohammad Yaqoob or any other person could not move the revision petition as of right in the High Court but nevertheless he was competent to bring this illegality to the notice of the High Court for its rectification in invoking the powers of superintendence and general control of the High Court under section 35 of the Courts and Laws Code Act, 1949, especially in a case where the interest of a minor is involved. The real party is not the next friend but the minor and it is his interest that has to be looked into. If the right of moving the High Court for setting aside, the compromise decree which is not for the benefit of the minor is given alone into the hands of the next friend effecting the compromise, it would be a denial of such right. Obviously, such a next friend who is going contrary to the interest of the minor would be reluctant to come forward and apprise the High Court of the illegality. It is alleged on behalf of the minor that his next friend has effected a compromise which was not to his interest but, in fact, injured his interest (as the present case is), or opinion is that anybody else acting as next friend of the minor could apprise the High Court to redress the wrong in exercise of the powers of superintendence and control over the subordinate Courts under section 35 of the Courts and Laws Code Act, 1949.
' For the above-stated reasons, we hold-
(l) that the revision petition before the High Court to assail the order of the learned Sub-Judge was not competent but the High Court in the circumstances of the case had rightly exercised the discretion in vacating the order and the impugned order shall be deemed to have been passed in exercise of the High Court's powers of superintendence and control over the subordinate Courts under section 35 of the Courts and Laws Code Act, 1949 ;
(ii) that Mohammad Yaqoob was competent to bring to the notice of the High Court the illegality committed by Mohammad Aziz the next friend of minor in making a compromise effecting the interest of the minor ; and
(iii) that the compromise effected by Mohammad Aziz was not in the interest of the minor and naturally the minor could not be bound by it.
' For the reasons stated above, we dismiss this appeal with costs.