' MUHAMMAD AFZAL LONE, J.---The respondents were plaintiffs in a suit for possession brought by them against the three appellants amongst whom appellant No, 2 was then a minor. The dispute between the parties related to land measuring 104 kanals, situate in village Bhawana, Tchsil Chiniot, District Jhang, which originally belonged to the appellants' predecessor-in-interest, namely, Shakir Hussain, who appointed one Iqbal Hussain as his attorney. The respondents' case is that the said attorney entered into an agreement to sell the land to respondent No, 1 for a consideration of Rs, 18,500, that he received Rs,12,000 in advance and handed over the possession. Subsequently, the remaining sum of Rs, 6,500 was also paid to him. However, at a later stage, it transpired that the authority conferred on him by Shakir Hussain did not include the power to sell the land. As Shakir Hussain owned the transaction, on the asking of the respondents, in order to transfer the land, he got a mutation entered in their favour; as half of the consideration was contributed by respondent No,2, therefore, her name was also included in the mutation, but before Shakir Hussain could make a statement before the Revenue Officer for attestation of the mutation he expired. The deceased had two sons Jaffer Hussain, appellant No,1 and Nisar Hussain. The latter died and was survived by a minor son Saghir Hussain and a widow Mst. Niaz Zohra, who are appellants No,2 and 3 herein. As the appellants repudiated the agreement for sale, the respondents filed a suit for declaration, which subsequently was converted into one for possession. The minor was sued through his uncle Jaffer Hussain, and an application under Order XXXII, rule 3, C.P.C., filed alongwith the plaint. The appellants-defendants contested the suit and the two adults appointed one Nusrat Hussain as their attorney to represent them before the trial Court. It appears that before the trial Court, Jaffer Hussain continued to act through his Attorney as guardian adlitem for the minor, though no formal order was made by the Court on the application. The attorney filed a joint written statement on behalf of the defendants including the minor. The trial Court framed several issues arising out of the pleadings of the parties and fixed the case for evidence. On 15-2-1971, which was the date for evidence, the counsel for the defendants made the following statement before the trial Court which was also signed by Nusrat Hussain: "Iftikhar Hussain son of Bashir Hussain who is present in Court has been the Mukhtar of Shakir Hussain deceased. The defendants will pay to the plaintiffs, within the period to be fixed by the Court the amount which Iftikhar Hussain may swear on the Holy Qur'an to have been received on account of the property in dispute from the plaintiffs. On the payment of the said amount the suit should be dismissed but if the said amount is not paid within the period fixed, the suit should be decreed."
' This offer was accepted by the respondents as well as Iftikhar Hussain. The latter made an oath on Holy Qur'an that he received Rs, 18,500 from the respondents for the sale of the land in their favour.
The trial Court fixed 30-5-1971 as the last date for payment of this amount by the appellants to the respondents. But, on 22-2-1971 they moved an application before the trial Court objecting to the decision of the suit on the basis of special oath on two grounds; firstly Nusrat Hussain was not granted any authority to have the suit decided on the strength of special oath; secondly, the agreement regarding such a decision of the suit was violative of Order XXXII, rule 7, C.P.C., as appellant No,2 was a minor and leave of the Court for entering into the agreement was not obtained.
2. The learned trial Court found that the terms of the power-of-attorney were so exhaustive that the Attorney stood clothed with almost all the powers enjoyed by the principal. The offer of the defendants' Attorney to be bound by the oath of Iftikhar Hussain was considered a mode of evidence for disposal of the suit. Consequently, the objections were turned down, and as the amount of Rs, 18,500 was not paid to the respondents within the time fixed by the Court, the suit was decreed in their favour. The defendants went in appeal, which was accepted by the learned District Judge. In his opinion, the agreement entered into between the parties that the suit would be decided in a particular manner required sanction of the Court under Order XXXII, rule 7 C.P.C.
Resultantly, the judgment and decree of the trial Court were set aside and the suit was remanded to the trial Court for decision afresh.
3. The respondents then preferred second appeal in the High Court. The learned Single Judge disagreed with the judgment of the First Appellate Court and took the view that the agreement between the parties to abide with the oath of a third person was merely an agreement relating to evidence to be given in the suit; such a matter fell within the discretion of the next friend of the minor to be exercised by him in the course of conduct of the suit; it was, therefore, not necessary for him to have approached the Court for grant of permission. On persual of the contents of the deed of power-of-attorney the High Court maintained that the agreement in question fell within the competence of the Attorney. In view of these findings by judgment dated 27-6-1975, under challenge before us, through leave to appeal, the High Court set aside the order of the First Appellate Court and restored the judgment and decree of the trial Court.
4. Leave to appeal was granted to examine whether in this case due compliance of law on the subject had taken place, and the offer made by the Attorney and the Counsel of the minor for getting the suit decided on admission with regard to the receipt of money by an outsider to the proceedings, related only to the mode of admitting evidence on record or went to the substance of the case.
5. It will be seen that Order XXXII, rule 7, C.P.C., prohibits the next friend or guardian of a minor in a suit, from entering into an agreement or compromise, with regard to the suit without leave of the Court. In this behalf the position taken by the appellants is that the offer made by their Attorney and Counsel, agreeing to the disposal of the suit, on the basis of the special oath of Iftikhar Hussain, which was accepted by the opposite side, amounted to an agreement falling within the mischief of Order XXXII, rule 7; that this rule is imperative; the agreement adversely affected the interest .Of the minor, but leave of the Court was not obtained. Thus according to the appellants the agreement so far as it related to the minor, was wholly illegal. The expression "agreement or compromise" is not defined in the Code, but these words appear in the preceding part of the Code in Order XXIII, rule 3.
When same words are used in different parts of an enactment, unless there is variation in the context in which they occur, conveying a different intent, the presumption will be that they carry the same meaning. The "agreement or compromise" visualised by Order XXIII, rule 3 is such, that it is not contingent upon happening of another event, and upon the terms thereof a decree can straightaway be passed by the Court. Obviously, agreement in question is not the type of agreement, covered by Order XXIII, rule 3.
6. In law, a reference to an outside party for information on the matter in dispute is receivable as an admission under section 20 of the Evidence Act against the party proposing the reference. This section provides: "Statements made by persons whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions."
' The question as to whether or not the sale price of the property in dispute had been paid was within the knowledge of Iftikhar Hussain. It was a controversial issue between the parties. The suit was fixed for evidence. Instead of procuring a decision of the Court rendered after recording evidence of both the sides, the appellants' Attorney and their Counsel through their statement chose to request the Court to make reference to Iftikhar Hussain requiring him to make a disclosure on oath regarding the payment of the sale price and further agreed to be bound by such disclosure. The role of Iftikhar Hussain was, therefore, in the nature of a referee. The fact that he had to make statement on oath and he did make such a statement admitting the existence of the fact as to the payment of the sale price, does not alter the character of his performance as referee. His statement was an evidentiary admission and a form of proof. The agreement by Nusrat Hussain and the Counsel for the defendants with the respondents for decision of the suit on the footing of the statement of the referee, which is merely a mode of evidence, is not an "agreement or compromise" of such a character that leave of the Court under Order XXXII, rule 7 is necessary.
7. Over 90 years ago, somewhat similar situation arose before Calcutta High Court in Sheo Nath Saran v. Sukh Lal Singh (ILR 27 Cal. 229) and it was observed: "The offer of the guardian of a minor defendant on behalf of the minor to abide by the deposition to be given by a plaintiff on oath taken in a particular form under the Oaths Act, stands on a very different ground from an agreement or compromise contemplated by 5.462, Civil P.C., of 1882, and that in such a case, the minor is bound by the consent of his guardian although given without the leave of the Court, provided that there is no fraud or gross negligence on the part of the guardian."
' This judgment was followed in Muhammad Mahmud Choudhry v. Behary Lal Saha and others (AIR 1930 Calcutta 463) wherein the consent given by a guardian ad-litem of two minor defendants without leave of the Court, to be bound by deposition on oath given by a plaintiff was held binding on the minors. We may also reproduce here with approval the following observations of the Full Bench of the Punjab Chief Court in Malik Sohrab v. Anokh Rai (18 P.R. 1891) quoted in the impugned judgment: "The function of a next friend is to conduct the case of the minor in Court, and, presumably, he is competent to do all that is usually incidental to the conduct of a suit in Court, without resorting to the Court at every step in the proceedings, though such a presumption may arise in respect to unusual proceedings. It is difficult to suppose that the leave of the Court is to be sought before the next friend can enter into an agreement with a pleader to appear, plead and act, on behalf of the minor, or agree to an adjourment, or to admit particular facts without proof, under section 58 of the Evidence Act, or to admit the genuineness of documents, so as to dispense with formal proof. And there is certainly no ground for holding that the next friend must require the leave of the Court as to the witness to be called, on the documents to be produced, as evidence for the minor. On the other hand, there are agreements in reference to suit, especially these which tend to withdraw the suit from decision by the Court, to which the leave of the Court may properly be regarded as requisite such are, an agreement to refer to arbitration, or an agreement contemplated by section 375, Civil Procedure Code, whereby the suit is adjusted wholly or in part."
' On the rectitude of this judgment, in Nihala v. Bhagwana and another (AIR 1936 Lah. 234), willingness of next friend of a minor to relinquish minor's claim without leave of the Court, should the opposite side make an oath, was considered merely a method of proof adopted by the next friend which did not suffer from any illegality. This view was followed by Peshawar High Court in Niaz Ali v. Yasin and others (PLD 1966 W.P. Peshawar 137). We entirely agree with the view expressed in these judgments.
8. The object of Order XXXII, rule 7, C.P.C., in imposing restriction on the powers of next friend or guardian of a minor, to enter into an "agreement or compromise" on behalf of the minor, without leave of the Court recorded expressly, is to protect the minor's rights in the suit from being adversely affected by negligence or wrongful act of the guardian. While allowing leave, the Court should bear in mind the interest of the minor and see that the compromise is beneficial to him. In this case the interest of the minor and the two adult defendants are identical; one of whom is his mother and the other uncle and guardian ad-litem. There is absolutely no allegation that the guardian acted negligently or was in collusion with the opposite side. Upon the facts of the case and the law on the subject, we are of the view that the leave of the Court was not necessary and the minor was bound by the agreement.
In our opinion, the judgment of the High Court is correct. It is accordingly affirmed. This appeal is, therefore, dismissed, but the parties are left to bear their own costs, as seemingly there is no reported judgment of this Court on the point urged in this appeal.