1. ' Mutation No, 177 was attested on 10-10-1974. It conveyed 9 kanals 6 marlas by way of sale from Sherun to Ghulam Sarwar and his two minor brothers (petitioners) for a consideration of Rs,13,000.
2. Karim Bakhsh and Sardar Khan (respondents) filed a pre-emption suit, claiming to be tenants. The AC/Collector, decided the suit against the respondents on 29-8-1979. The respondents filed an appeal in the Court of the Additional Commissioner (Revenue), Dera Ghazi Khan. During the course of the hearing the counsel for the petitioners offered (on 10-10-1975) that if Karim Bakhsh took an oath on the Holy Qur'an that he was a tenant of the land in dispute the suit might be decided in favour of Karim Bakhsh and Sardar Khan. If he failed to take the oath on the Holy Qur'an the appeal should be decided in favour of Ghulam Sarwar and his two minor brothers. The Court of the Additional Commissioner (Rev.) took down the statements of the counsel for both parties. Both counsels agreed to this. On 24-10-1982 Karim Bakhsh duly took this oath in the presence of Ghulam Sarwar and the two counsels. Ghulam Sarwar and their counsel had no objection to the appeal being decided in favour of Karim Bukhsh and Sardar Khan. The case was, therefore, decided in favour of the present respondents. Arguments ' The following arguments will determine this case:-
(1) The most important point to determine in the present case is whether the offer and acceptance of an oath of the kind involved in this case attracts the provisions of Order 32, Rule 7 of the C.P.C.
3. In my opinion an agreement or compromise envisaged in Order 32, Rule 7 is distinctly different from the special oath. An agreement or compromise is with regard to the subject-matter of a suit, and settles the terms with regard to that subject-matter. In other words, it is a settlement which determines the rights inter se of the Parties. A based on a piece of evidence, about which there may be dispute between settlement is not a piece of evidence. However, a settlement can be the parties. Now, the disputed piece of evidence - on which the agreement, compromise, or settlement is to be based - may either be determined through the usual course under the law of evidence, or there may be an agreed procedure between the parties to decide its existence or veracity. If a mode of determining or settling the veracity of this disputed piece of evidence is arrived at between the parties, it cannot be termed a compromise or agreement relating to the suit, by which the subject matter in the suit has been settled between the parties: such a mode with regard to a fact to be proved is not a compromise or agreement in terms of Order 32, Rule 7 of C.P.C. In the present case the oath was to prove or disprove the fact of the respondents tenancy; the oath was not in itself a settlement for agreement. Instead of proving the fact of the tenancy through record or by other evidence, the parties agreed to have it proved by an oath. Thus what was effected in the present case was not a settlement, but only a consensus concerned the mathod of proving a fact.
4. ' In view of this, provisions of Order 32 Rule 7 are not attracted.
(2) The logic behind the provisions of Order 32, Rule 7 is to ensure that interests of minors are abundantly safeguarded so that there is no possibility of a suit being compromised by their guardian or next friend without the Court carefully looking into the matter. An agreement or compromise may not have any penalties attached to it, and may be one-sided, whereas in the present case the oath clearly has a penalty - albeit to be paid here or hereafter in a form though not necessarily palpable, but nonetheless frighteningly potent in the view of the believers and therefore it cannot be argued that this kind of oath on the Holy Qur'aan could be a collusive agreement against the interest of a minor involved in the case. The law, therefore, would not put an oath on the Holy Qur'aan on the same footing as an agreement or a compromise.
(3) The rulings cited by the counsel for the petitioners will not avail. In 1975 SCMR 491, the Additional District Judge gave permission for the compromise in respect of the minor defendants in a case where a compromise was arrived at between the parties to the effect that the appeal might be decided according to the statement made by one Jewan on the Holy Qur'aan. It was not held in this case that it was absolutely essential to do so under Order 32, Rule 7. The learned Judge did not discuss whether in all cases of an oath on the Holy Qur'aan relating to any matter or fact in a suit, it was obligatory for the Court to resort to the procedure under Rule 7, Order 32 where a minor was a party. If the learned Additional District Judge resorted to it, he may have done so as matter of abundant caution. In PLD 1985 Lah. 273, it has been held that the provisions of Order 32, Rule 7 may not be attracted to an agreement to have the case decided on special oath made during the pendency of the suit and that too, before the start of the evidence, as in these circumstances the agreement provides only a spcial mode of proof and is not one envisaged by Order 32, Rule 7 C.P.C.
5. The present case clearly fulfils this criterian. In the case cited the provisions of Order 32, Rule 7 were attracted because, as was held, "the offer was made to have the appeal decided on special oath of a third person". Thus this case too cited by the counsel for the petitioners will not help his case. In fact this citation itself has drawn a distinction between a compromise and the proof of a fact through an oath.
(4) As regards the spirit of Order 32, Rule 7, it has clearly been met in the present case. The conditions of an oath was offered by the counsel for Ghulam Sarwar and his two minor brothers in the presence of Ghulam Sarwar. There was a gap of 14 days between the offer of oath and the taking of the oath. During this period the natural guardian i.e, the father of the three brothers could also come forward to challenge this procedure if he wanted to. It has not been shown that Ghulam Sarwar had entered into a collusive agreement with the respondent against the interests of his minor brothers. The father has also not agitated the matter. Permission of the Court is implied in the decision. If the Order of the Additional Commissioner is upset by reference to Order 32 Rule 7, it would amount to making the petitioner Karim Bakhsh suffer on both counts: he has been made to take an oath on the Holy Qur'aan on an offer of the petitioner Ghulam Sarwar, and yet he would not have been believed. Ghulam Sarwar and his two brothers are estopped from doing so, because the two brothers were fully represented by their counsel.
(5) I am not certain if even under Order 32, Rule 7 guardian and next friend cannot be represented by counsel. If this is so, minors may as well be represented by counsel in cases involvig oath,as they are when their other right come up before Courts of Law. Their representation by counsel in the present case has not been denied.
6. ' In view of the above discussion and arguments, I must make a distinction between the provisions of Order 32, Rule 7, C.P.C., and the facts of the present case. I do not find any reason to interfere with the order of the learned Additional Commissioner (Revenue), Dera Ghazi Khan. The revision petition is rejected.