1. ' This application under section 115, Civil P.C. By the defendants in the pre-emption suit, in the trial Court is against the order and decree dated 22-11-1980 passed by learned District Judge, Sargodha by which civil appeal was disposed of in terms of compromise reached between the parties. It arises in the following circumstances:-- ' Mehra son of Muhammad was owner of land measuring 8 kanals, 4 marlas at Mauza Channi Muhammad Qazi, in Tehsil Bhalwal of District Sargodha. By deed of sale registered on 6-11-1977, he sold above land to Muhammad Aslam, Ghulam Muhammad, Ghulam Abbas, and, Muhammad Afzal for a price of Rs,13,000. Zafarullah claimed pre-emption in respect of this sale. Superior right of pre-emption was asserted on the grounds of being a son of the vendor and owner of the estate.
2. Price paid for the land was denied. It was averred that sale was made for Rs,7,000 only, and, the exaggerated price was inserted in the sale-deed to stave off the plaintiff's pre-emption. Pre- emption suit was instituted on 19-9-1978, in the Civil Court at Bhalwal. Of the vendees, Muhammad Afzal was minor. Muhammad Aslam defendant, a co-vendee, and, brother was proposed to act as guardian ad-litem of the minor defendant. Record did not reveal a formal order for the appointment of a guardian ad-litem. But all the same, Muhammad Aslam acted in that capacity on behalf of his minor brother.
3. ' Defendants submitted a joint written statement and contested the pre-emption suit. They raised three preliminary objections. These contained pleas of estoppel; defective form of the suit and its non-maintainability and the defendants being tenants of the land at the time of its purchase and, therefore, having first right of pre-emption. On merits, right to pre-empt asserted by the plaintiff was denied, and, it was pleaded that land was purchased at the sale price of Rs,13,000 and the same was its true market value.
4. ' On 22-1-1979, trial Court framed issues covering the material points in dispute. Thereafter, the parties gave evidence. Upon its analysis, the trial Court found for the plaintiff and decreed pre- emption in his favour subject to his paying Rs,7,000 as price for the land to the vendee, till 11-7-1980, failing that, the suit was deemed to have been dismissed. Aggrieved of the decree against them, defendants preferred an appeal to learned District Judge, Sargodha, on 16-6-1980. Here also, Muhammad Aslam appellant acted as guardian ad-litem for Muhammad Afzal minor-appellant.
5. Appeal was tiled through Mr. Nazeer Ahmad Naseem, Advocate of Sargodha. In course of appeal, on 22-11-1980, parties arrived at a compromise. Appellants conceded right of pre-emption to the respondent subject to his paying them Rs,13,000 as the sale price for the land. In turn, respondent agreed to pay the full consideration. Thereupon, lower appellate Court recorded the statements of appellant Muhammad Aslam alongwith Mr. Nazeer Ahmad Naseem, Advocate and also the respondent and his. Advocate. In terms of compromise, the decree passed by the trial Court was modified and purchase price was enhanced to Rs,13,000. It was to be deposited by 6-12-1980.
6. ' Dissatisfied by the decree passed on compromise in appeal, defendants preferred a revision petition in this Court. It was admitted to examine the effect of absence of leave expressly recorded in proceedings for permitting and recording of a compromise on behalf of minor-appellant.
7. ' On behalf of the appellants, main and only contention urged at the hearing was that in absence of a leave expressly recorded in the proceedings, in terms of Order XXXII, Rule 7, Civil P.C., guardian ad-litem of the minor-appellant could not have entered into a compromise in appeal and since the decree passed was joint and indivisible, it was liable to be quashed in its entirety. In support of his contention, learned counsel referred to the provisions in Order XXXII, Rule 7, Civil P.C., and, the cases in Karam Chand and another v. Narinjan Singh and others AIR 1938 Lahore 709, Mst. Zarel Bibi and others v. Shamsuldin Khan and others PLD 1956 (W.P) Karachi 150, Irshad Mahmud and 5 others v. Maqbool Ahmed and 3 others PLD 1982 Lahore 366, Ghulam Abbas and others v. Faqir Hussain 1983 CLC 99, Kameen Khan v. Mustafa and others 1984 CLC 1244, Mst. Rukhsana Bibi and others v. Fatima Bibi and others PLD 1985 Lahore 273, Nasser Nabi and 4 others v. Ghulam Nabi Khan and another PLD 1986, Azad J&K 121, Begu Khan v. Ghulam Muhammad and 8 others PLD 1988 Peshawar 162, Muhammad Younas and others v. Muhammad Amir Alam Khan and others 1989 MLD 1537 and Dhirendra Kumar Garg and others v. Smt. Sugandhibai Jain and others 1990 MLD 940 (Supreme Court of India). On behalf of respondent, it was argued that since the terms of compromise were favourable .And beneficial to the interests of the minor, in absence of any prejudice caused by it, it could not be avoided. Thus, revision petition raised a question touching the scope of Order XXXII, Rule 7, Civil P.C., its object and imperatives as also consequential effects of failing to comply with it. However, before Rule 7 is examined, in order to appreciate the controversy, it is necessary to narrate salient features of the case. Respondent is son of the vendor. Sale in favour of the vendees is joint and indivisible. Share purchased by each vendee is specified but there is no indication about the proportion of the sale price contributed by each vendee. Vendees are real brothers. Of them, only Muhammad Afzal suffered a disability on account of his minority.
8. His elder brother Muhammad Aslam was proposed as his guardian ad-litem. Though there is no formal order by the Court for appointment of guardian ad-litem but he is found to have acted in that capacity not only in the trial Court but in first appeal in the lower appellate Court and in revision filed in this Court. Vendees had identical interests and there was no allegation of negligence or misconduct against the guardian ad-litem. Record revealed that it was a case of vigorously contested trial between the parties. In the written statement, though all the defendants were alleged to be in cultivatory possession of the land in suit as tenants at the time of its sale, extract from register Khasra girdawari Ext. P2 denoted actual possession of Muhammad Aslam only and that too from crop Rabi 1977. It gave no support to plea of tenancy set up by others who independent of it, did not possess any other qualification. As for the price, it was not paid before the Sub-Registrar at the time of registration of sale deed. Also, there was no receipt to evidence its payment. Statement of quinquennial averages showed the price per acre of the land at Rs,1,716. The trial Court fixed the price on the "admission" in the plaint wherein it was averred that the land was sold for Rs,7,000 and it was its market value. Muhammad Aslam petitioner alone was found a tenant of the land at the time of its sale and his associate-vendees as strangers. On the application of doctrine of sinker, Muhammad Aslam also lost his preference to the pre-emptor. In this context, it is to be seen, whether compromise decree could have been avoided on the score of its failing to meet with the requirements of Rule 7 of Order XXXII, Civil P.C. Section 147 and Order XXXII, Rule 7 of Civil P.C. Are to be read together. They are complementary to each other and are intended to safeguard the interests of minors, persons of adjudged unsound mind and mentally infirm who are incapable of protecting their interests in litigation by or against them. The duty of safeguarding the interests of minors, persons of adjudged unsound mind and mentally infirm is thrown upon the Court. Rule 7 expressly prohibits the next friend or the guardian ad-litem to enter into any agreement or compromise on behalf of a person suffering from a disability of minority, unsoundness of mind or mental infirmity, without leave of the Court expressly recorded in the proceedings and by implication required the Court to consider in exercise of its discretion about propriety of allowing the compromise in the interests of disabled persons. Language of the rule is imperative and must be strictly complied with. Further, leave of the Court must be express and could not be implied from the mere fact that the Court has passed a decree by adopting the compromise affecting a disabled person. A compromise on behalf of a disabled person in absence of leave expressly recorded in the proceedings under Rule 7 cannot be supported. However, such a compromise is not an absolute nullity. It is binding on all except a disabled person who has the option either to affirm and ratify or avoid it. Therefore, a compromise in which a disabled person is a party cannot be recorded without an express leave of the Court and unless it is found in his interest and for his benefit. Thus a disabled person viz. a minor, a person of unsound mind or mentally infirm can challenge the decree where it was passed upon a compromise for which no leave under Rule 7 was obtained because such a decree could not be termed as a consent decree validly passed. There are rulings for view that where the interests of a disabled person are not separable in the compromise decree, others who did not suffer from the disability could also avoid it. However, before allowing a compromise to be recorded and acted upon in which a minor or a disabled person is a party, the Court must satisfy its mind that the proposed compromise was for the benefit of the minor or the disabled person as the case may be. A compromise will be considered to be favourable and beneficial to the interests of the minor or the disabled person if it secured to him some visible advantage or avoided some loss to his interests. What has been observed above has the support from a large body of case law rendered on Rule 7 of Order XXXII, Civil P.C. There is a consensus on it without even a minor dissension. During the pendency of civil revision, minor-appellant attained majority. Upon notice given under Rule 12 of Order XXXII of the Code, he elected to proceed. Consequently, guardian ad-litem was discharged and the title of civil revision amended.
9. ' Having regard to the aforesaid civil revision is allowed, compromise decree passed on 22-11-1980 by the lower Appellate Court is set aside and the case is remanded to it to determine whether the proposed compromise was beneficial to the interests of the then minor-appellant Muhammad Afzal, and, if so, the propriety to give leave for recording it on his behalf for deciding of the appeal in accordance therewith. In the event of the lower appellate Court being of the opinion that the compromise was not favourable to the interests of the minor-appellant, then it shall proceed to decide the appeal on merits in accordance with law. It may be noted that as for major appellants, the compromise did not suffer from any legal flaw, and, was binding upon them. It was only in regard to the minor-appellant that the compromise suffered from an infirmity in violation of Rule 7.
10. No order as to costs in this Court.
11. ' Records be returned. Parties shall appear in the Court below on 6-7-1991.