' In the suit out of which this revision petition arises, Kameen Khan and others sued the defendants Mustafa and others for a declaration to the effect that a decree obtained by Mustafa defendant against the plaintiffs was fraudulent and inoperative against them because it had been obtained by practising fraud and misrepresentation and was in contravention of certain provisions of the Civil Procedure Code, which have been enacted for the protection of the minors. It appears that on the 3rd of May, 1969 Mustafa defendant instituted a Suit (No, 165/1 of 1969) against the plaintiffs for a declaration to the effect that he was owner in possession of the land mentioned in the plaint of that suit, which is also the land now in suit, and that the names of the plaintiffs wrongly appeared in the revenue record, which was liable to be corrected. A permanent injunction was also claimed in that suit by Mustafa defendant against the plaintiffs, for restraining them from interfering with his rights. That suit was initially contested by the present plaintiffs, but was ultimately compromised on the 9th March, 1970, on the basis of which, on the same date, the declaratory decree as well as the decree for permanent injunction claimed by Mustafa defendant was passed in his favour against the present plaintiffs. That decree is now sought to be avoided by the plaintiffs on the grounds that it was fraudulent and was against the interest of Lawangeen Khan and Sawabreen minors and was obtained without obtaining express permission of the Court for effecting compromise on their behalf. It is also alleged that Mustafa defendant was neither the owner of the disputed land nor was he in possession thereof, and by taking undue advantage of the fact that his name and his father's name coincided with the names of the predecessors of the plaintiffs 23 to 40, he fraudulently got the decree passed in his favour.
2. The defendants contested this suit on legal and factual pleas. The learned trial Judge held that no fraud or misrepresentation was practised upon the plaintiffs in the former suit. He also held that the minors were duly represented and their interest properly looked after by their guardian ad litem in that suit. He, consequently, dismissed the suit. The plaintiffs took the matter in appeal, but failed.
Hence this revision petition, but by one of the plaintiffs, though for the benefit of all. The discussion throughout would, therefore, cover all the plaintiffs, and so would the decision.
3. S. Muhammad Shah Badshah, Advocate appeared on behalf of the petitioner. Mian Muhammad Yunis Shah, Advocate represented respondents 1 to 5 (hereinafter called the respondents). Their arguments were heard. The record of the case was perused with their assistance.
4. The learned counsel for the petitioner attacked the decree obtained by respondent No, 1 in Suit No, 165/1 as being the result of misrepresentation and fraud and urged that it may be set aside. His contention was that two. Of the defendants in Suit No, 165/1, Lawangeen and Swabreen by name were minors and in effecting compromise on their behalf, which became the basis for the decree, their interest was not properly looked after by their guardian in the suit, nor was any permission for the compromise obtained from the Court, as was required by Order XXXII, rule 7, C. P. C. His other contention was that neither the compromise was signed by all the defendants in suit No, 165/1, nor were they all present before the Court when it was received and acted upon, nor was the counsel professing to represent them having any authority or power-of-attorney on their behalf. For these reasons, he urged, the compromise could not have been made basis for the decree passed in that suit. The learned counsel contended that it was patent on the record that fraud was practised by respondent No, 1 not only upon the opposite party (plaintiffs in this suit) but also upon the Court which passed the decree. The learned counsel further argued that the fact that after obtaining the decree is Suit No, 165/1 respondent No, 1 sold the entire land to respondents 2 to 5 was by itself sufficient to show that the decree obtained in that suit was the result of misrepresentation and fraud. The learned counsel contended that on the grounds urged by him the whole of the decree passed in Suit No, 165/1 was liable to be struck down and that the two Courts below erred in refusing to the plaintiffs the relief claimed by them in this suit. He relied on AIR 1946 P C 72, 1980 CLC 1642, AIR 1942 All. 85, AIR 1937 Cal. 658, PLD 1963 Pesh. 43, AIR 1961 SC (India) '790 and PLD 1971 Kar.
109.
5. The first contention of the learned counsel for the respondents was I that since the particulars of the fraud alleged to have been committed by respondent No, 1 in Suit No, 165/1 were not specifically given in the plaint of this suit, there was, therefore, no adequate plea of fraud before the Court. The plaintiffs, the learned counsel contended, could not, therefore, succeed in avoiding the decree passed in Suit No, 165/1 on this plea. The learned counsel further contended that in order to avoid the decree on the basis of fraud the plaintiffs had to prove that the fraud was extrinsic or collateral to the adjudication involved in the judgment. He argued that the decree of the Court could not be set aside on the allegations that it was obtained by perjured evidence or that the claim was false.
Mere suppression of certain facts, even if that be true, according to the learned counsel, did not amount to a fraud that would entitle the party to avoid a decree. The other contention of the learned counsel for the respondents was that the ground now urged by the learned counsel for the petitioner that because some of the plaintiffs in this suit had not subscribed to the compromise in Suit No, 165/1 they w ere thus not bound by it, cannot be allowed to be agitated at this stage because this ground was neither taken up by them in the pleading, nor before the two Courts below. The learned counsel also contended that the violation of the provisions of rule 7 of Order XXXII, C. P. C. Does not make the decree a nullity and for that reason it cannot be avoided by the parties who are adults. He maintained that it can only be avoided by those who are minors. The learned counsel contended that even though the express permission of the Court was not obtained in Suit No, 165/1 for effecting compromise on behalf of Lawangeen and Sawabreen minors, yet by accepting the compromise and passing decree thereon the Court would be presumed to have impliedly allowed the compromise to be effected on their behalf considering it to be in their interest. The learned counsel relied on PLD 1959 Kar. 79, PLD 1969 Kar. 662, AIR 1937 P C 146, AIR 1961 SC (India) 790, PLD 1956 Pesh. 173, AIR 1927 Lah. 330, AIR 1962 Andh. Pra. 74 and AIR 1963 Kerala 26.
6. I would deal with the arguments of the learned counsel for the parties in the order below.
7. I would first dispose of the first objection raised by the learned counsel for the respondents. On going through the plaint, especially paragraph 1 thereof, it becomes clear that some facts were mentioned therein which according to the plaintiffs constituted fraud which was practised upon them by defendant No, 1 (respondent No, 1) while obtaining decree in his favour in Suit No, 165/1. This would mean that the particulars of the fraud were mentioned in the pleadings of the plaintiffs and the provisions of rule 4 of Order VI, C. P. C. Were, therefore, not violated. That is entirely a different question that the facts mentioned in paragraph 1 of the plaint were not sufficient to constitute the fraud, but in no case it could be urged that the particulars of the fraud having not been given in the plaint there was a violation of Order VI, rule 4, C. P. C. This argument of the learned counsel for the respondent is, therefore, without substance.
8. Coming to the arguments of the learned counsel for the petitioner, one of his contentions was that since all the defendants in Suit No, 165/1 were neither present nor properly represented before the Court when the compromise deed becoming basis for the decree was accepted and acted upon by it, no valid decree could have been passed in that suit. The learned counsel for the respondents opposed this contention on the ground already mentioned in paragraph 5 of this judgment, which may not be repeated here. The perusal of the plaint would show that this plea was not mentioned therein as a ground for avoiding the decree passed in Suit No, 165/1. No specific issue was, therefore, framed on this point, nor was any evidence led thereon, nor was the opposite party afforded an opportunity to rebut it. This plea was also not pressed before the learned two Courts below. Hence it cannot be allowed to be pressed for the first time before this Court.
9. The false assertion made by the defendant No, 1 in the pleadings of former Suit No, 165/1 that he was in possession of the disputed land did not amount to fraud that would entitle the plaintiffs to avoid the decree passed in that suit. Such assertion of fact could be proved and disproved a the trial by leading evidence to that effect. Even the opposite party could make a counterclaim and the counterclaims made by parties to a suit, howsoever false they may be, do not by themselves constitute fraud because each party is at liberty to prove his claim and disprove counterclaim a the trial. In order to avoid decree on the basis of fraud plaintiff must prove that he was prevented by some trick or contrivance of the defendant from appearing and placing his case before the Court. Unless this is prove the plaintiff cannot succeed. I am supported in this view by the decision of the Andhra Pradesh High Court in L. v. Abate and others (1) and by the decision of Kerala High Court in Papavinasom Subrahmoniam's case, (2). In the first mentioned case their Lordships held that : "a fraud that can vitiate a decree and render it liable to be avoided is the fraud that is collateral and extrinsic to the case. It is now well-established that a decree of Court cannot be set aside on the ground of fraud on the allegations that it was obtained by perjured evidence, or that the claim was false. It must be proved that the plaintiff was prevented by some trick or contrivance of the defendant from appearing and placing his case before the Court."
(1) AIR 1962 And. Prad. 274 (2) AIR 1963 Kerala 26 ' In the second mentioned case his Lords hip so laid down the law : "that fraud to be a ground for vacating judgment must be extrinsic or collateral to the adjudications involved in the judgment and not been, or deemed to have been, dealt with by the Court in the impugned judgment.
Applying this principle to this case, there is nothing on the record to show that the plaintiffs in this suit (who were defendants in Suit No, 165/1) were prevented by the defendant No, 1 (who was plaintiff in Suit No, 165/1) by any measure or contrivance from placing in former Suit No, 165/1 their case before the Court. The decree could not, therefore, be avoided on this ground. The plea urged by the learned counsel for the petitioner being without substance must fail.
10. The mere fact that after obtaining in his favour decree in Suit No, 165/1 the defendant No, 1 (respondent No, 1) transferred the entire land to the defendants 2 to 5 (respondents 2 to 5) would not mean that the decree' obtained was the result of fraud practised upon the Court and the opposite E party. After obtaining a declaration from the Court in his favour that he' was the owner of the suit land the defendant No, 1 (respondent No, 1) was' free to transfer the land in the manner he deemed appropriate. Such' transfer did not mean that the declaration obtained from the Court was based on fraud. This argument has no substance.
11. The argument of the learned counsel for the petitioner which is left to be considered is that the decree passed in Suit No, 165/1 could be avoided by Lawangeen and Sawabreen minors because express permission of the Court, as was required by Order XXXII, rule 7, C. P. C., was not obtained for effecting on their behalf compromise in that suit. The learned counsel contended that since such omission made the decree voidable at the option of the minors and since the minors elected to avoid it, the adult parties to such decree could also avoid it. The contention of the learned counsel for the respondents, as already mentioned, was that by passing decree in that suit and by basing it on the compromise, to which the minors were also party, the Court would be deemed to had impliedly sanctioned the compromise on behalf of the minors considering it to be for their benefit.
His other contention was that in case the decree fell within the mischief of Order XXXII, rule 7, C. P. C., then only the minors could avoid it to the extent of their share and not the adult plaintiff.
12. The minority of Lawangeen and Sawabreen at the time of decree in Suit No, 165/1 was undisputed. In that suit they were represented by their real brother Abdul Jalil, who was their guardian ad litem and was also one of the defendants in the suit. The record shows that neither the Court was moved for granting sanction for compromise on their behalf, nor was any express sanction granted by the Court for the purpose. It follows that decree in Suit No, 165/1 was passed on the basis of a compromise which was not expressly sanctioned by the Court to be effected on behalf of Lawangeen and Sawabreen minors. What could be its effect, required to be determined in this suit.
13. Order XXXII, rule 7, C. P. C. May for the sake of reference be reproduced as under :- "7 (1) No next friend or guardian for suit shall, without the 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.
(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor."
The plain reading of this rule would show that no next friend or guardian in the suit can enter into an agreement or compromise which would bind the minor unless the Court sanctions it. A compromise without the leave of the Court and a decree passed thereon is, however, not a nullity but is merely voidable at the option of the minor. The argument of the learned counsel for the respondents that by passing decree on the basis of compromise the Court would be deemed to have sanctioned compromise on behalf of the minors has no force. Such interpretation of law would render meaningless the word "expressly" used in the statute. It is now well-settled that redundancy is not to be attributed to the Legislature and each word used in the statute is to be read as integral part thereof, carrying the meaning, if in the circumstances not impracticable, as here, which is assigned to it in ordinary parlance. Further, the inclusion of the word "expressly" in the law indicates the intention of the law-maker that the Court must, before giving express sanction on behalf of the minor, be satisfied that the rendered compromise would be for the benefit of the minor. How and in what manner the Court would achieve such satisfaction would depend on the, circumstances of each case and no hard and fast rule or a rule of universal application could be laid down in this regard. I am, therefore, of the view that a minor can avoid the decree of the Court passed on the basis of the compromise effected by his next friend or guardian in the suit without an express sanction recorded by the Court for such compromise. This clearly is the intention of Order XXXII, rule 7, C. P. C. The authorities reported as PLD 1963 (W. P.) Pesh. 93, 1980 CLC 1942, AIR 1938 Cal. 658, AIR 1952 All. 240 and AIR 1961 SC (India) 790 support my view. Applying this principle to the case in hand, I am of the view that Lawangeen and Sawabreen minors could avoid the decree passed against them in Suit No, 165/1. The findings of the two Courts below on this point being illegal and resulting in grave injustice to the minors cannot be maintained.
14. Having decided that the minor-defendants in Suit No, 165/1 could avoid the decree passed therein, the question arises whether on that basis, when the minors have elected to avoid the decree, the adult parties to that suit could also avoid the decree passed in that suit ? The learned counsel representing the parties are at variance on this point, and the views held by them have already been stated in this judgment and need not be reproduced here.
15. It is beyond dispute that rule 7 has been inserted in Order XXXII of the Code of Civil Procedure with a view to safeguarding the interest of a minor. The intention of the framers of the Code by this insertion clearly was that the sanction of the Court must be obtained to an, agreement or compromise effected in a suit on behalf of a minor by his next friend or guardian ad Item. The rule also made it imperative, as already observed, that before granting such sanction the Court must apply it mind to the fact whether or not the agreement or the compromise would be in the interest of the minor. Sanction would, naturally, be granted by the Court if the agreement or the compromise is in the interest of minor. Where such agreement or compromise is entered into without the leave of the Court expressly recorded, then such agreement or compromise, as already held, shall be voidable at the option of a minor against all parties, and shall not be voidable by any other party against a minor. It is so laid down in sub-rule (2) of rule 7 of Order XXXII of the Code. It is thus obvious that what was dear to the framers of rule 7 was the interest of a minor and the rule was, therefore, couched in the language that made it imperative for the Court seized of jurisdiction to see that the interest of the minor was properly safeguarded. This rule was not meant to be included in the Code for an adult party to the case and it cannot, therefore, be interpreted in a manner that would extend its benefit to an adult. In AIR 1951 SC 280, while interpreting Order XXXII, rule 7, his Lordship Bose, J. Observed : "Sub-rule (2) contemplates a position where the mandatory provisions of sub-rule (1) have been ignored. In such a case, the resultant agreement or compromise is not to be held a nullity. It is only voidable. Therefore, it is good unless the minor chooses to avoid it. It follows that a decree or Order based on the agreement is also good unless the minor chooses to challenge it. That is the position where there is no sanction of the Court. Reading two provisions together, the rule merely means this. No next friend or guardian for the suit can enter into an agreement or compromise which will bind the minors unless the Court sanctions it."
The effect of rule 7. Therefore, is that the compromise and the resultant decree are voidable at the option of a minor and not at the option of a major against a minor. If a major cannot avoid the compromise or the decree based thereon against a minor, then certainly he would he precluded from avoiding it against a major, as any contrary interpretation would only be possible when we read in the rule certain words which do not exist there. While interpreting this rule in AIR 1981 SC 790 their Lordships observed : "What the rule really means is that the impugned agreement can be avoided by the minor against the parties who are major and that it cannot be avoided by the parties who are major against the minor. It is voidable and not void. It is voidable at the instance of the minor and not at the instance of any other party. It is voidable against the parties that are major but not against a minor. This provisions has been made for the protection of minors, and it means nothing more than this that the failure to comply with the requirements of Order XXXII, rule 7(1) will entitle a minor to avoid the agreement and its consequences. If he avoids the said agreement it would be set aside but in no case can the infirmity in the agreement be used by other parties for the purpose of avoiding it in their own interest. The protection of the minors' interest requires that he should be given liberty to avoid it. No such consideration arises in respect of the other parties to the agreement and they can make no grievance or complaint against the agreement on the ground that it has not complied with Order XXXII, rule 7 (1)."
' In Jamna Bai Saheb Mohitai Avergal's case (1) the Privy Council held that the fact that on account of non-observance of the requirements of section
(1) AIR 1916 P C 2 ' 462 of the old Code (0. XXXII, r. 7) the minor executant could not be held liable under the promissory note, would be no bar to the promisee's claim against the other executant.
16. From what has preceded it follows that ordinarily an adult party to a suit cannot avoid the consent decree on the ground that it has not complied with Order XXXII, rule 7 (1), C. P. C. Such ground would also not be available to him even though a minor may join him as co-plaintiff in the suit instituted for the purpose of avoiding the decree. There may, however, be cases in which the consent decree passed without complying with Order XXXII, rule 7(1), C. P. C. Is against the defendants whose shares are unascertained or unascertainable. Where such is the case, then the decree passed is indivisible and thus in executable unless it remains intact as a whole. The preliminary decree passed. For instance, in a partition suit or in a suit for rendition of accounts and the decree passed in a suit for injunction restraining the defendants from using the right of way I indivisible and in executable. It has to stand or fall as a whole. There it would be no splitting up of such a decree. Where such is a case, even an adult party when joined by a person who was a minor at the time of the passing of the decree would within limitation be able to avoid the decree on the ground of having not complied with Order XXXII, rule 7 (1), C.P.C. Such, however, is not the case here because the plaintiffs, who were defendants in the former suit, were entered in the revenue record having ascertained shares in the land which went to the defendant No, I (respondent No, 1)' by means of the decree passed in the former suit. The decree being divisible could, therefore, be avoided only by the minors.
17. The Privy Council case relied upon by the learned counsel for the petitioner (AIR 1946 P C'72) is of no help to the petitioner's case. In that case the decree being indivisible could either stand or fall as a whole. That is not the case here, as already observed. Mashal Khan's case (1) relied upon by the learned counsel for the petitioner is also distinguishable on facts because in that case the house occupied by Fazal Karim, a minor, was transferred in his favour and in favour of Umar Din, who later in collusion with the pre-emptor obtained through compromise an advantage for himself alone to the exclusion of the minor. It was also held in that case that the minor was not duly represented in the former suit and the decree obtained on the basis of compromise had not become fully effective and had not acquired legal effect. Such was not the case here. Mst. Sajida Sultana's case (2) was a case for the rendition of accounts and the compromise being inseparable could not have been implemented unless it stood as a whole. These authorities, therefore, do not advance the case of the petitioner, any further.
18. In the result, this revision petition, though not filed by Lawangeen and Sawabreen minors, must to the extent of their share succeed. 'The judgments and decrees passed by the two Courts below are, consequently, partially set aside in so far as they relate to the share of Lawangeen and Sawabreen, who would be deemed to have been granted the declaratory decree claimed in this suit. In effect, however former Suit No, 165/1 shall, only to that extent, stand restored to its original number and the trial Court would proceed to determine that suit in accordance with law. To the extent of the share of the other plaintiffs, who are petitioner and respondents Nos. 6
(1) PLD 1963 Pesh. 93 (2) PLD 1971 Kar. 109 ' to 42 herein, this revision petition shall stand dismissed. Since difficult questions of law were involved in this case, I make no order as to costs.