This application has been moved by Talah Safdar who is minor son of late Malik Safdar Hussain and his mother Mst. Amna Jabeen who were two of the petitioners in the main revision petition under section 12(2), C.P.C. Read with section 114, C.P.C. For recalling the judgment dated 2-7-1991 passed in Civil Revision No. 485/80 through which the said revision petition was decided on the basis of special oath taken by Bashir Ahmad respondent No. l on the acceptance of offer to take oath made by petitioner No. l and learned counsel for all the revision petitioners.
2. Late Malik Safdar Hussain who was one of the revision petitioners died on 8-5-1991 and the present applicants were impleaded as petitioners as his heirs on acceptance of C.M. No.404-C of 1991 through order dated 4-6-1991. The applicant No. 1 is admittedly a minor. It was not denied that the learned counsel who made the offer alongwith petitioner No. l in the revision petition was the counsel for all the revision petitioners including the applicants and applicant No. l was represented by Mst. Amna Jabeen his mother as guardian-at-item/next friend in this case.
3. The main question involved in the revision petition was as to whether the revision petitioners were entitled to inherent the property of Muhammad Ramzan deceased as his legal heirs because it was denied that they were the heirs of Muhammad Ramzan.
4. Petitioner No. l who himself is an Advocate and learned counsel for all the petitioners made an offer that if Bashir Ahmad respondent No. l who was present in the Court on the date when the case was fixed for hearing stated on special oath of Holy Qur'an that the revision petitioners were not related to Muhammad Ramzan and were not his legal heirs to inherit his property the revision petition may be dismissed as withdrawn. Bashir Ahmad respondent No. l accepted this offer and took special oath on Holy Qur'an and made statement that none of the petitioners was heir of Muhammad Ramzan deceased, therefore, they were not entitled to inherit his property in dispute.
5. Petitioner No.1 as also learned counsel for the petitioners in view of this oath having been taken made statement for the withdrawal of the revision petition which was dismissed as withdrawn as a result of which the judgment and decree passed by the learned lower appellate Court in favour of the respondents remained intact.
6. Learned counsel for the applicant/petitioner argued that Talah Safdar son of Malik Safdar Hussain deceased was minor, therefore, according to the mandatory provisions of Order 32, Rule 7 of the C.P.C. His guardian-ad-item could not enter into any agreement or compromise so far as it related to his interest in the suit without the permission of the Court which was to be recorded in the proceedings expressly, as such, the offer made by petitioner No.1 and learned counsel for all the revision petitioners including Talah Safdar was not binding on the minor and no permission through the express order having been granted to applicant No.2 to enter into the said agreement regarding oath having been granted so far as minor was concerned, therefore, the revision petition qua the interest of minor should be decided on merits. In support of his contentions learned counsel for the petitioner reliance on judgments reported as Ghulam Haider v. Muhammad Nawaz (1975 SCMR 41), Arif Yazdani v. Sheikh Abdus Salam (PLD 1957 (W.P.) Lah. 983), Niaz A.I v. Yasin and others (PLD 1966 (W.P.) Pesh. 137), Ghulam Abbas v. Faqir Hussain (1983 CLC 99); Mst. Rukhsana Bibi v. Fatima Bibi (PLD 1985 Lah. 273), Allah Ditta v. Malik Ahmad Bakhsh (PLD 1975 Lah. 403), Jaffar Abbas v. Ahmad (PLD 1991 SC 1134) and Muhammad Hussain v. Mst. Shah Begum (1990 MLD 2100).
7. The question which requires consideration in this case is as to whether the offer made by the learned counsel for the revision petitioners for the decision of the case on the basis of special oath if taken by the opposite-party was the agreement or compromise of the kind and nature as contemplated by Order 32, Rule 7, C.P.C. Which required express permission of the Court before the same was allowed to be materialised and acted upon in case the same also affected the rights of minor in the suit. This question came up for consideration in a case reported as Jafar Abbas and 2 others v. Ahmad and another (PLD 1991 SC 1134) relied upon by the learned counsel for the respondents. In this judgment after examining the law and considering the judgments of the Full Bench of the Punjab Chief Court in Malak Sorab v. Anokh R.I and others (18 P.R. 1891) and judgment of Calcutta High Court in Sheo Nath Saran v. Sukh Lal Singh (ILR 27 Cal. 229) it was held that such an offer did not constitute agreement or compromise as contemplated by Order 32, Rule 7, C.P.C., therefore, the same did not require express permission of the Court and the same could be acted upon without such leave as the statement if made on special oath amounted to evidentiary admission and form of proof.
8. Learned counsel for the applicants faced with this difficulty tried to overcome it by arguing that in this case the facts were different as an offer was made to bind the parties including the minor by the statement of a person who was not party to the suit whereas in this case it was respondent No.1 who was party to the suit, according to the offer was to take oath.
9. I am afraid the argument has no merits. In the Full Bench judgment of the Punjab Chief Court principle was laid down that an offer by next friend of minor to be bound by the solemn affirmation of any witness or the party to the suit did not require the leave of the Court. Similarly in case Muhammad Mahmud Chaudhry v. Behari Lal Saha and others (AIR 1930 Calcutta 463) which has also been referred to in the judgment of the Supreme Court it was held that consent given by the guardian-ad-item of minor defendants without leave of the Court, to be bound by deposition on oath given by the plaintiff was binding on the minors. In Calcutta case ' ILR 27 Cal. 229' which too has been considered in the reported judgment an offer by the guardian of the minor to be bound by the statement on oath of the plaintiff was held to require no leave of the Court. The rule laid down in these judgments has been approved by the Supreme Court, therefore, it does not make any difference if an offer was made to be bound by the oath to be taken by a person who is not party to the suit or by any of the parties to the suit.
10. Learned counsel for the applicant then argued that Mst. Amna Jabeen the mother of the minor who was his next friend/guardian-ad-item did not make offer personally whereas the offer was made by the learned counsel who was appointed by her on her own behalf as also on behalf of the minor acting as guardian-ad-item, therefore, the same was not binding on the minor.
11. This argument too has no merits. Law is well-settled that a counsel appointed by the parties has the power to make such an offer as the same flows from the terms of his appointment. I have gone through the power of attorney/Vakalatnama executed in favour of the learned counsel for the revision petitioners and find that express power was given to him to make such an offer.
The presence of Mst. Amna Jabeen to make such an offer by her learned counsel was not required nor it was the requirement of law that such an offer could be made by guardian-ad-item personally end not by his counsel. Learned counsel engaged by the parties in a suit always has the authority to appear on his behalf and act in accordance with the terms of his appointment. The offer made by the learned counsel for the petitioners including the minor in the revision petition shall be deemed to have been made by the parties who engaged him.
12. It has been brought to my notice that during the pendency of the appeal before the learned lower appellate Court a similar offer was made by the deceased Malik Safdar Hussain alongwith others when he was alive through a written application that if respondent No. l Bashir Ahmad had taken such an oath the appeal may be decided accordingly. Since the said application was made on the date when the appeal was fixed for pronouncement of judgment, therefore, the learned lower appellate Court thought it proper to decide the appeal on merits which decision was in favour of the respondent.
13. For the foregoing reasons this application has no merits which is accordingly dismissed.