' Ghulatn Nabi alienated the suit land to Manga. The sale was pre-empted by Nasser Nabi. Faisal Nabi, Qaisar Nabi, Yassar Nabi, sons and Mst. Sakeena Bibi, wife of Ghulam Nabi vendor. The minor plaintiffs were represented by Mu. Sakeena Bibi, their mother and a co-plaintiff, as their next-friend.
On 23rd November, 1983, the defendant had to appear to file written statement but he failed to appear for want of service and the case was adjourned to 14th January, 1984. On the same day, after some interval, an application was moved by the plaintiffs' counsel for recalling the file to register a compromise. The application was moved on behalf of M. Sakeena Bibi. On recalling the file, two applications, one on behalf of Mst. Sakeena Bibi and the other on behalf of the minors through Mst. Sakeena Bibi but signed by the counsel, were placed before the Court, in support of which statement of the counsel was recorded. The applications contained a recital that the plaintiffs had compromised with the defendant, as such, they did not want to pursue the suit. In view of the applications accompanied by the statement of the counsel of the plaintiffs, the trial Court dismissed the suit. The plaintiff-appellants, feeling aggrieved by the order, preferred an appeal before the District Judge but the same was dismissed in the light of the provisions of section 96, C. P. C., in addition to the ground of limitation. In the memorandum of appeal, it was averred that there was no compromise between the parties and that the applications for restoration of the file and dismissal of the suit on account of compromise, were without authority and fraudulent.
2. Mr. Riaz Alam, the learned counsel representing the vendee-respondent raised an objection that as the first appeal was dismissed for want of limitation, the second appeal was equally untenable.
It was further emphasised that in presence of restriction contained in section 96(3) of the Civil Procedure Code, the decree of the trial Court being a consent decree, was not subject to appeal.
Mr. Basharat Ahmad Sheikh, the learned counsel for the appellants, refuted both the objections and urged that the order of the trial Court was bad in law as the same was passed in derogation to the provisions of rule 7, Order XXXII of Civil Procedure Code. It was elaborated that the trial Court failed in its duty to apply mind to the alleged compromise as the said compromise was neither in the interest of the minors nor it was made by the next-friend of the minors. He cited PLD 1963 Azad J & K 59, L D 1967 Azad J & K 93 and PLD 1965 Kar.
341.
3. The objection raised by Mr. Riaz Alam is disposed of conveniently. It is admitted by the learned counsel that no appeal lies against a consent or compromise decree and that the decision of the trial Court, in present case, falls within the purview of subsection (3) of section 96 of the Civil Procedure Code. It requires no emphasis to hold that on acceptance of the contention of the learned counsel as correct, the obvious answer available to the objection is that as no appeal lies against the order of the trial Court, the question of limitation considered in the first appeal loses its importance. I agree with the learned counsel that no appeal lies against a consent or compromise decree and, in the present case, as the impugned order is based on a compromise, it was not subject to appeal. But as the propriety and validity of the compromi and the order passed on it has been seriously challenged by the Mino pre-emptors and their mother, it is undeniable that where no appeal lies, High Court in exercise of its powers of superintendence envisaged unde section 115 of the Civil Procedure Code and section 35 of the Courts and Laws Code Act, is empowered to examine the legality of the impugned order. This view finds support from Muhammad Sabeel Khan's case (1), wherein an objection to jurisdiction of High Court in exercise of it revisional jurisdiction was settled. On analysis of the case law on th point, it was observed that the High Court was competent to examine the legality of the order of withdrawal of suit of minor pre-emptor through a next-friend, in exercise of powers of superintendence and contra over the subordinate Courts under section 35 of the Azad Jammu and Kashmir Courts and Laws Code Act in addition to powers unde section 115 of the Civil Procedure Code. An identical view was expresse in Muhammad lishad's case (2), and in 4bdul Hamid's case (3). In Aril Yazdani's case (4). Mr. Justice A. R. Changez observed that when subordinate Court, in exercise of its jurisdiction acts in breach of some provisions of law or commits some error of procedure in the trial which is material in that it may have affected the ultimate decision, then that Court acts illegally or with material irregularity within the meaning section 115 of the Code of Civil Procedure. When a Court commits an error in the mode prescribed for the exercise of jurisdiction, then the High Court has the power to interfere under section 115 of the Code o Civil Procedure. The Civil Procedure Code applicable to Azad Jammul and Kashmir enhances this power by additional clause (d), which empower High Court to exercise its jurisdiction under this section "in order to meet the ends of justice". The objection being devoid of force, is here by rejected.
4. A persualof the record reflects that the suit was at its earlier stage and the defendant had yet to put up appearance. On the day of passing of the impugned order, the next-friend of the minor plaintiffs was not shown present at the time of first hearing or subsequent hearing when the suit was dismissed. Likewise, the application for restoration of the file and the other two applications containing the recital of compromise entered into on behalf of .41st. Sakeena Bibi and for leave of the Court to compromise on behalf of the minor plaintiffs, were not signed by Sakeena Bibi. All the applications bear the signatures of the counsel of the plaintiffs. The factual aspect of the case indicates that Mst. Sakeena Bibi, next-friend of the minor plaintiffs, was not present in the Court on
(1) PLD 1983 SC (A J & K) 13 (2) P D 1967 Azad & K 93
(1) PLD 1963 Azad J& K 59 (4) PLD 1957 tab 983 the day of passing of the impugned order. Therefore, it has to be believed that no immediate instructions relating to compromise were passed on to the counsel to move for restoration of the file to get the suit dismissed on basis of the alleged compromise. Another supporting circumstance is that copy of the order was obtained by Subedar (retired) Abdur Rehman, a petition-writer, on behalf of the plaintiffs, after a considerable delay. This was the reason that the first appeal was preferred on lapse of statutory limitation. An affidavit of Subedar (retired) Abdur Rehman in support of this fact, has been placed on the file of this Court. The state of facts listed above, has not been refuted by the opposite side.
5. The learned counsel for the parties are in agreement that the suit was dismissed on the basis of a compromise between the parties. The relevant law applicable to the proposition in hand is available under 'rule 7, Order XXXII of Civil Procedure Code. The law contemplates that no next- friend or guardian for the suit shall 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, without leave of the Court expressly recorded in the proceedings. The requisite condition for passing a decree on the basis of an agreement or compromise made by a next-friend or guardian on behalf of a minor, is that it must be accompanied by the leave of the Court and that such leave of the Court must be expressly recorded,
6. The term "compromise" has not been defined anywhere in the Civil Procedure Code. In absence of a definition described in the Code, it has to be given a dictionary meaning. In Black's Law Dictionary, the term "compromise- has been defined as: "An arrangement arrived at, either in Court or out of Court, for settling a dispute upon what appears to the parties to be equitabl terms, having regard to the uncertainty they are in regarding the facts, or the law and the facts together. An agreement or arrangement by which, in consideration of mutual concessions, a controvers is terminated."
' It is clear from the definition of the word "compromise" that it pre conceives the settlement of a dispute by an agreement or arrangemen in consideration of mutual concessions. In other words, the parties to a compromise have to deviate from their respective stands by extending mutual concessions in order to settle the controversy at rest. The term "compromise" does not comprehend total benefit or gain of one party , and total loss of the other nor does it include a unilateral action. On this premises, the legislature while introducing the provision for an agreement or compromise on behalf of a minor, placed a second check in the shape of the leave of the Court 'expressly recorded'. It is there- E fore, to be satisfied, firstly, that the compromise or the agreement purported to have been made on behalf of a minor, conforms to the true spirit of the compromise and, secondly, that it is not detrimental to the interest of the minor. This has to be tested by examining the terms and conditions of the compromise accompanied by a vigilant and judicious leave of the Court in approval of such compromise.
7. Before an agreement or compromise made on behalf of a minor plaintiff by a next-friend or guardian is acted upon, it is enjoined upon the Court to apply its mind to the terms and conditions of such compromise and on satisfying itself that the compromise is in the interest of the minor, it is vested with a discretion to grant leave for complying with such terms of the compromise or agreement. The use of the language "without leave of the Court expressely recorded", manifests that a duty is cast upon the Court to be vigilant to safeguard and protect the interests of minors and to grant leave only when it is fully satisfied that the terms in question are in the interest of the minor plaintiff. Ordinarily speaking, a minor is supposed to be the ward of the Court and in that capacity, Courts have to be on guard that the proposed agreement or compromise is in th benefit of the minor. In order to hold a compromise being in the interest of a minor, it must fulfil the following conditions:
(i) that the compromise or agreement must be bona fide and in th interest of the minor;
(ii) that it must be free from fraud or mistake;
(iii) that it must be made by a next-friend or guardian of minor; and
(iv) that it must be accompanied by an express leave of the Court.
8. In present case, the application alleging the compromise contains no recital of any terms and conditions so settled between the perties. It contains a bare statement that the parties have compromised, and nothing else. Such a compromise may be acceptable in a case where the parties are not minor but in view of the specific provisions of rule 7, Order XXXII, Civil Procedure Code, it is necessary, in the case of a compromise or agreement made on behalf of minors, that it must expressly list the definite terms and conditions of the compromise. This is so as in absence of express terms and conditions of the compromise, the Court is not in a position to apply its mind to such a compromise. In the present case, it is noticed that no express terms and conditions of the compromise were listed in the application. In absence of express terms and conditions, the alleged compromise cannot be termed a legal compromise.
9. It has been already observed that Court is under a duty to be vigilant to the interest of minors while exercising its discretion in granting leave to the next-friend for entering into a compromise on behalf of the minor plaintiffs. In order to believe that the discretion vested in the Court was properly exercised or that the leave was granted expressly, there must be express terms and conditions, constituting the compromise, before the Court. Where no express terms and conditions are placed before the Court and despite that it grants leave for compromise on behalf of a minor, in such a position, the Court cannot be deemed to have acted in a judicial fashion. In this case, the leave of the Court was given in routine without applying its mind to the nature of the compromise having regard to the interest of the minors. The trial Court, therefore, acted just in a mechanical fashion.
10. In an identical situation, in Abdul Hamid's case, as the preemption suit instituted on behalf of a minor was partly decreed on the basis of a compromise entered into by the next-friend with the leave of the Court, question of validity of the compromise was raised in the High Court. Mr. Justice Muhammad Sharif set aside the decree as in his opinion the impugned decree was patently against the interest of the minor. The learned Judge observed that the trial Court gave leave for the compromise without having sufficient material before it as at the time of granting leave for compromise, it had nothing before it except the bare statement of the next-friend. Next time, when the proposition was raised in Muhammad Irshad's case, the view expressed in Abdul Hamidir case was followed. Muhammad Irshad's case was also a case of pre-emption where the suit instituted by a minor plaintiff through a next-friend was withdrawn on the pretext that it was in the interest of the minor. Mr. Justice (late) Yar Muhammad Khan, on examining the facts and scope of the provisions of Order XXXII, rule 7, C. P. C. Arrived at the conclusion that the withdrawal of the suit was not in the interest of the minor pre-emptor. Conseauently the order of withdrawal was set aside and the suit was restored to the file of the trial Court for its decision on merits. In Mir Attaullah's case (1). Mr. Justice Anwarul Haq settled the proposition relating to compromise made on behalf of minor plaintiffs. On examining the proceedings of the subordinate tribunals and the manner of leave of Court for compromise effected by the next-friend (who also happened to be mother of the minor plaintiff), the learned Judge observed that the leave of the Court for compromise was not accorded in accordance with law and in view of the controversy relating to the terms of the compromise, the learned Judge set aside the entire proceedings and restored the suit for its decision in the light of the controversial points raised therein. In Arif Yazdani's case, Mr. Justice A. R.
Changez examined among others, the importance of duty of Court and its Scope contemplated under rule 7, Order XXXII, C. P. C. And observed that the rule forbids a next-friend or guardian to enter into any agreement or compromise on behalf of minors without the express leave of the Court. The Court is, therefore, expected to consider the interest of the minor. The duty of safeguarding his interests is thrown upon the Court and it is duty of the Court to watch his interests vigilantly. An important authority on the proposition is listed in Muhammad Sabeel Khan's case (2).
That was also a case of pre-emption instituted by Muhammad Riaz Khan, minor pre-emptor, through Muhammad Aziz, his next-friend. At the conclusion of the trial, the next-friend moved an application for permission to withdraw the suit as, in case of decree, the minor would not be in a position to pay the decretal amount. The withdrawal was sought as the vendee had agreed to pay Rs, 6,000 the cost of the suit, to the minor pre-emptor. The Sub-Judge gave leave for withdrawal of the suit and the amount of Rs, 6,000 purported to be the cost of the suit, was paid in the Court to the next-friend. The order of withdrawal was challenged in the High Court where the learned Single Judge arrived at the conclusion that the order of withdrawal of the suit was bad for its being against the interests of the minor. Mr. Justice Raja Muhammad Khurshid Khan, the learned Acting Chief Justice, who delivered the verdict of the Court, concurred with the finding of the High Court and observed: "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 Muhammad Aziz, the next-friend, about whom it is admitted that he had accepted Rs, 6,000 from the vendees. 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."
H. It is quite evident from the facts listed above that in the present
(1) PLD 1965 Kar. 341 (2) PLD 1983 SC (A J & K) 13 case, neither the Court applied its mind to the terms and conditions of the alleged compromise at the time of granting leave for such compromise nor the so-called compromise was shown in the interests of the minors. I have no hesitation to hold that the trial Court passed its order in utter disregard of the provisions of Order XXXII, rule 7, Civil Procedure Code.
12. It has been concluded that the alleged compromise on behalf of the minor pre-emptors, being detrimental to their interests and without lawful authority, is not binding on them. The compromise to that extent is to be set aside. Likewise, Mst. Sakeena Bibi, co-pre-emptor, is not shown to have given instructions to her counsel to compromise on her behalf. The compromise is also not binding on her. Apart from that, when the suit in respect of the minors is to be restored, it has to be restored as a whole, including the interest of Mst. Sakeena Bibi.
' The order being bad in law, is hereby set aside. The suit is restored' to the file of the trial Court for its decision under law. Costs shall followed the event.
Appeal accepted. PLD 1986 Azad J & K 128 {{URDU TEXT}} - (T)
(a) Maxim - -- Audi alteram partern- {{URDU TEXT}}
(b) Civil Procedure Code (V of 1908)- -- 0. XVI, r. 1 (1) & (2)- {{URDU TEXT}} 4
(c) Civil Procedure Code (V of 1908)- - S. 115- {{URDU TEXT}}
(d) Civil Procedure Code (V of 1908)- - - 0. XVI, r. 1(1) & (2)- {{URDU TEXT}} /AA {{URDU TEXT}} PLD 1986 Azad J& K 137 {{URDU TEXT}}
(a) Azad Jammu & Kashmir Waqf Properties Act, 1960-- S. 7- {{URDU TEXT}}
(b) Qamm-e-Shahadat Order (10 of 1984)- -- Art. 114- {{URDU TEXT}} [Estoppel] [p. 143]B
(c) Muhammadan Law-- Waqf property- . {{URDU TEXT}} [Adverse possession] [p. 143]C {{URDU TEXT}}
(d) Azad Jammu and Kashmir Waqf Properties Act, 1960-- S. 7- {{URDU TEXT}} {{URDU TEXT}}
(e) West Pakistan Land Revenue Act (XVII of 1967)- -- S. 52 -- {{URDU TEXT}} "He cannot blow hot and could at the same time. He cannot approbate and reapprobate". {{URDU TEXT}} 8 {{URDU TEXT}} " 217. Adverse possession against wae,Waqf property may be lost by adverse possession. But a Mutawallie's possession cannot be adverse to the Wagf." {{URDU TEXT}} "(d) `Waqf property' means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Mussalman Waqf Validating Act, 1913, under which any benefit is, for the time being, claimable for himself by the person by whom the Waqf was cerated or by any member of his family or descendant s." {{URDU TEXT}} Explanation 1 : If a property has been used from twice immemorial for any purpose recognized by Islam as religious, pious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be Waqf.
Explanation 2: Property of any kind acquired with the sale proceeds or in exchange of or from the income arising out of Waqf property or from subscriptions raised for any purpose recognized by Islam as religious pious or charitable, shall be deemed to be Waqf property. Explanation 3: The income from boxes placed at a shrine and offerings or subscriptions for charitable purposes shall be deemed to be Waqf property. Explanation 4: Relief of the poor, education, worship, medical relief, maintenance of shrines or the advancement of any other object of charitable, religious or pious nature or of general public utility shall be deemed to be charitable purpose."
L cr-...1.41; .11.41.. j,s, ,.... -.:.,a; Z. 4 j zkoi ,,ri j citrir4 Z Z) 4 ArOS L c-Aul ..S .,:1-.1,241..0 ,-;.-1..0-J:,' q. 44,1 - er- K--, {{URDU TEXT}}
(c) Civil procedure Code (V of 1908) - S. 115- {{URDU TEXT}} 985 : {{URDU TEXT}} The Law of the Procedure Vol. II Third (1980) Edition. {{URDU TEXT}}
2. List of Witnesses not submitted. Although sub-rule (2) provides penalty for non-submission of the list as provided by rule the same rule reduces the rigour of law by leaving discretion to the Court concerned for permitting a party to examine witnesses even if list of their names was not submitted withtn 7 days, the time prescribed under sub rule (1). The discretion under sub rule(2) undoubtedly is very wide, of course with normal unwritten liniitation that its exercise either way should not be arbitrary. Apart from this general limitetion, the only other limitation, specified in sub rule (2) is that if discration is exercised in favour of the defaulting party, the Court would have record reasons in that behalf." {{URDU TEXT}} Capriciously, arbitrarily or contrary to the accepted principles of administration of justice {{URDU TEXT}} " It is specifically mentioned in the application that he as suffering from ailment of eyes, therefore, he could not do the needful in connection with the submission of the list. It was also submitted in the application that the default was not wilful ..... Be that as it may, a positive assertion having been made in the application that the petitioner was not able to do the needful on account of illness and further that the default was not wilful, the learned trial Judge should not have adopted a technical course. The provisions contained in Order XVI, Rule 1(1) are not intended to trap a litigant for closing his evidence." {{URDU TEXT}} " The reference is thus answered that if a party fails to file a list of witnesses to be called under Order XVI, r. 1, it cannot ask a Court to call a witness as a matter of right. If the request is made, it is for the Court to accede to the request or not. Of course, the Court shall exercise the discretion judiciously which carries within itself benevolence without injury to the substantive right of another.
Witnesses in attendance shall be examined in accordance with the provisions of Order XVIII. Rule 4 as well." {{URDU TEXT}}
(a) Civil service-- Notification {{URDU TEXT}}
(b) Limitation Act (IX of 1908)--S. 28 - {{URDU TEXT}}
(c) Civil services- Pension- {{URDU TEXT}}
(d) Words and phrases- .{{URDU TEXT}}
(e) Azad Jammu and Kashmir Co-operative Societies Act-- Pre-amble. {{URDU TEXT}}
(f) Islamic Jurisprudence - --Rabaa- {{URDU TEXT}}
(g) Azad Jummu and Kashmir Co-operative Societies Act-- Preamble. {{URDU TEXT}}
(h) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)-- S. 44- {{URDU TEXT}} {{URDU TEXT}} " The Limitation Act with regard to personal actions merely bars the remedy by suit, but does not extinguish the debt or demand ; and none of the Articles in the schedule, except those to which section 28 can be applied, has an extinctive operation on primary rights. A debt does not cease to be a debt because its recovery is barred by the statute of limitation. Limitation extinguishes the remedy, but except in the case covered by section 28, does not destroy the right. Section 28 applies only to suits for possession of property, and has no application to a case of a debt." {{URDU TEXT}} " This section is an exception to the general principle that limitation bars only the remedy and does not extinguish the right so far as suits for possession of property are concerned. The law of limitation as regards possession and dispossession of property, has always been a law af prescription." {{URDU TEXT}} "
12. It is well-known that the Limitation Act, with regard to personal actions, bars the remedy without extinguishing the rights. It is only in a suit for possession of any property that on the determination of the period of limitation not only the remedy but the right also, is extinguished under section 23 of the Limitation Act. But a debt does not cease to be due, because it cannot be recovered, after the expiration of the period of limitation provided for instituting a suit for its recovery. In all personl actions, the right subsists although the remedy is no longer available. It, therefore, a creditor, whose debt becomes statute barred, has any means of realising and enforcing his claim by an method except by a suit, the Limitation Act does not prevent him from recovering his debt by such means. After a debt becomes barred a person is still deemed to owe.
In case he pa)s the amount after the expiration of the period of limitation, he cannot, after having paid his debt, claim to be entitled to recover it back, on the ground, that the time-barred debt was not "money due" or "owing".
9 11 The rule of law is firmly established that a debt does not cease to be a debt because its recovery is barred by the statute of Limitation.
See also Jokhu Bhunfa V. Sitio Baksh Singh, AIR 1930 All. 416, Mohesh Lal V. Busunt Kumaree, I L R 6 Cal. 340 and Bhagwati Prasad v. Shirimoni Sugar Mills, Ltd. AIR 1949 All 195,