' ZIA MAHMOOD MIRZA, J.---This petition is directed against the judgment of Lahore High Court dated 10-7-1993 whereby the revision petition filed by Mst. Farhat Shaheen respondent herein has been accepted, the judgment of the Additional District Judge dated 2-1-1993 has been set aside and the judgment and decree of the Civil Judge dismissing the suit of the petitioner restored.
2. Facts necessary for the disposal of this petition, briefly stated, are that the petitioner being a minor brought a suit through his real paternal uncle as next friend to challenge the inheritance mutation sanctioned in respect of the estate of his deceased father Ali Asghar whereby the respondent was also given a share therein. It was alleged by the petitioner that the respondent had been divorced by his father in his life time and she was not, therefore, entitled to any share in his estate. The suit was contested by the respondent. However, on 26-11-1991, the petitioner through his next friend made an offer that if Raham Ali, the father of the defendent/respondent took oath on Holy Qur'an that the respondent had not been divorced by Ali Asgher, petitioner's suit may be dismissed. Pursuant to this offer, Raham Ali who was present in Court took the requisite oath on Holy Qur'an whereafter, the petitioner's suit was dismissed on the same day i,e. 26-11-1991.
3. Petitioner preferred an appeal which was accepted by the Additional District Judge on the ground that since the offer was not accepted by the respondent herself, no agreement between the parties came into existence which could be binding on them. The view taken by the appellate Court was that the father of the respondent who accepted the offer and took the oath was stranger to the cause and as such his statement could not be made the basis of dismissal of the suit. It was also held by the Additional District Judge that the next friend of the minor could not enter into an agreement for compromise without obtaining express permission of the Court and such a permission not having been obtained, the entire proceedings stood vitiated.
4. Feeling aggrieved, the defendant/respondent preferred a revision petition in the High Court. The learned Single Judge relying upon a judgment of this Court reported in PLD 1991 SC 1131 held that the offer made by the next friend of the minor was in the nature of a reference to a third party in terms of Article 33 of Qanun-e-Shandat Order and the statement made by Raham All on special oath fell squarely within the purview of the said provision and was to be treated as an admission in terms thereof. It was further held by the learned Judge that it was not a case of compromise between the parties and, therefore, it was not necessary for the next friend of the minor-plaintiff to obtain prior permission of the Court for entering into compromise. Revision petition was accordingly accepted and the decree of the trial Court was restored.
5. We have heard the learned counsel appearing in support of this petition. He has contended that as the next friend of the petitioner made the offer to have the case decided on the special oath of the father of the defendant who was an interested person, it was incumbent upon the former to have sought leave of the Court under Order XXXII, Rule 7, C.P.C. Before making such an offer. We fmd no merit in this contention. Law by now is fairly well-settled that the offer of oath as was made by the next friend of the petitioner in the instant case is only a special method of proof adopted by the next friend and is not in the nature of an agreement or compromise and, therefore, it does not require the sanction/leave of the Court contemplated by Order XXXII Rule 7, C.P.C. Refer "Muhammad Mahmud Chaudhry and others v. Behary Lal Saha and others," (AIR 1930 Calcutta 463) wherein it was held "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 a special oath stands on a very different ground from an agreement or compromise contemplated by Order 32, rule 7, and in such a case the minor is bound by the consent of his guardian although given without the leave of the Court provided there is no fraud or gross negligence on the part of the guardian." Again in the case reported as AIR 1936 Lahore 235 Sultan Muhammad and others v. Mehr Khan and others, the view taken was that "when the next friend of a minor expressed willingness to be bound by the oath of a certain witness, it was not in the nature of a compromise." "It was a method of proof which the next friend had adopted.
There was nothing illegal at all in that method. This view was followed in a Peshawar case reported in PLD 1966 Peshawar 137 wherein it was held that the offer of next friend of the minor to abide by the oath of the opposite-party on the crucial question involved in the suit was not in the nature of compromise but was method of proof, adopted by the next friend and no illegality was attached to that matter. The view expressed in these cases was approved by this Court in the case of Jaffer Abbas (supra) and it was held therein that the role of an outsider to whom reference is made requiring him to make disclosure on oath on the matter in dispute is in the nature of a referee and his statement is an "evidentiary. Admission and form of proof' and that the agreement of the parties for decision of the suit on the footing of the statement of the referee is not an "agreement or compromise" of such a character as would require leave of the Court under Order XXXII, Rule 7, C.P.C.
6. In the aforesaid view of the matter, we are satisfied that Order XXXII, Rule 7, C.P.C. In terms had no application to the facts of the present case as no agreement or compromise had been effected between the parties. The statement of Raham Ali on special oath offered by the next friend of the minor was binding on the minor particularly when there was no allegation of negligence or collusion against the next friend. We have noted that the minor filed the appeal before the District Judge and the petition for leave to appeal in this Court through the same next friend who also represented him in the High Court.
' Upshot of the above discussion is that we find no merit in this petition which is accordingly dismissed and the leave sought is refused.