' The appellant filed a suit for possession and permanent injunction against the respondents which was dismissed by the trial Court vide judgment and decree dated 5-12-1975. Appeal preferred by them. Also met the same fate on 18-7-1977.
2. Briefly the facts of the case are, that the appellants filed the suit for possession of the land measuring 228 Kanals and 4 Marlas situated in revenue estate of Pira Tehsil Talagang District Campbellsport claiming that being the legal heirs of Muhammad Amin the deceased owner, they are entitled to their share of inheritance and the transfer of such land by Mst. Bhag Bhari, the widow of Muhammad Amin, in favour of Haqnawaz respondent No, 4 by way of gift, is illegal and unlawful.
3. This suit was resisted by the respondents, inter alia, on the grounds that-the suit is barred by res judicata and Mst. Bhagbhari was the full owner of the disputed property, who had validly gifted the same. The parties produced evidence and the trial Court came to the conclusion that the appellants along with other had earlier filed a suit wherein they had claimed the relief of similar nature but subsequently this suit was withdrawn, thus, the instant suit was barred under the law.
4. It may be pertinent to state here that the appellant No, 2, Fateh Muhammad was a minor at the time of filing of earlier suit and he had sued along with other through Mst. Allah Jowai as his next friend. Subsequently, a statement was made by counsel for the plaintiff in that case, to withdraw the suit simpliciter. It may be mentioned here that the appellant 'No, 1 was also a co-plaintiff in that suit. The question which arose for consideration in the instant suit was whether the next friend namely, Allah Jowai has misconducted in withdrawing the suit without keeping in view the best interest of the minor and that it was necessary at the time of withdrawal that the Court should determine whether the withdrawal of the suit was beneficial to the minor, consequently, the effect of such withdrawal on the competency of the present suit was a proposition.
5. Learned Civil Judge, seized of the matter, came to the conclusion that there is nothing on the record that Mst. Allah Jowai had misconducted in withdrawing the suit or it was collusively done and that if the suit on behalf of the minor was withdrawn by his next friend, some co-plaintiffs could have resisted the same being against the interest of the minor. It was also held that the provisions of Order XXXII, Rule 7, C.P.C. Were in applicable to the present matter because the suit was not stated to have been withdrawn on the basis of any settlement or a compromise but a withdrawal simpliciter in which the provisions of Order XXIII, Rule 3, or Order XXXII, Rule 7, C.P.C. Were not attracted at all. Another issue regarding ownership of Mst. Bhagbheri and validity of the transfer was also decided in favour of the defendant.
6. Aggrieved by the above, the appellants filed an appeal which was dismissed by the learned Additional District Judge, holding that the appellants were "not competent to file the present appeal". The reasoning given by the Court in appeal is also the same that the withdrawal statement given by the learned counsel for the plaintiff in the earlier suit does not contemplate the withdrawal on the basis of any compromise or settlement but it was only abandonment of claim under the provisions of Order XXIII, Rule 1, C.P.C.
7. Learned counsel for the appellants has made reference to the cases reported as Muhammad Irshad v. Nura (PLD 1967 Azad J&K 93), Muhammad Sabeel Khan v. Muhammad Riaz Khan, etc. (PLD 1983 (Azad J&K 13) and Rajada and another v. Ghulla and others (AIR 1919 Lah. 395) to contend that even in the case of withdrawal simpliciter, it is incumbent upon the Court to satisfy that the withdrawal would be in the benefit of the minor as at the relevant point of time, this aspect was not adverted to or considered by the Court, consequently, the withdrawal of the earlier suit on behalf of appellant No,2 who admittedly was a minor at the relevant point of time, would not attract the bar of law in filing the instant suit.
8. On the other hand, learned counsel for the respondents has reiterated the reasonings given by the Courts below and states that the provisions of Order XXXII, Rule 7, C.P.C. Would only be attracted in the case of settlement or compromise by next friend, and not in a situation where the case is being withdrawn simpliciter.
9. I have heard learned counsel for the parties. As per judgment of the Lahore High Court reported as AIR 1919 Lah. 395, it is held that "Courts should be very jealous of the interests of minors and should not allow a suit or part of a suit instituted on a minor's behalf to be withdrawn without being satisfied that it is for his benefit". It is further held "that inasmuch as no reason was given by the next friend for withdrawing the suit on behalf of the minors, nor was the Court asked to allow the plaintiffs to withdraw from part of the suit with liberty to institute a fresh suit in respect of the subject-matter of such part nor was the interest of the minor considered; the minor was entitled to bring a separate suit for the relief which was abandoned in the previous suit". In the case reported as PLD 1967 Azad J&K 93 it is held that withdrawal of a- suit by the next friend can be allowed only in the best interest and for the benefit of the minor: The next friend is under the obligation to obtain leave of the Court in clear and unambiguous term that the Court fully understood that withdrawal was for the minor benefit.
10. The minor and lunatic are disadvantage litigants, who are unable to safeguard and protect their interest. It is for this reason that the law requires their representation in litigation through a major to act as a next friend or guardian ad litem. Once the lis involving the minor is before the Court, it is for the Court to act as the ultimate guardian of the minor and to ensure that the rights and interests of the minor are not prejudiced due to lapse, negligence or collusion of his next friend or guardian ad litem. Therefore, it is the mandatory requirement of provisions of Order 32, Rule 7, C.P.C. That where a compromise or a settlement is affected involving the interest of the minor, the leave of the Court is necessary and the Court has to record reasons approving such agreement or compromise. If the next friend or the guardian ad litem, though, enters into an agreement but does not disclose and take the Court into confidence of the reasons behind the withdrawal with the object to defeat the provisions of Order 32, Rule 7, C.P.C., it is the duty of the Court to ascertain such reason, which necessitated and prompted for the withdrawal of the claim on behalf of the minor so as to know and understand the basis in that behalf.
11. The reasoning given by both the Courts below that Order 23, Rule 1, C.P.C. Has no nexus to the provisions of Order 32, Rule 7, C.P.C. Is absolutely unfounded and baseless, because where a minor is a plaintiff and claim on his behalf is being given up, necessarily there should be some background to the above which could not possibly be otherwise than on the basis of any settlement or compromise between the next friend of the minor and the opposite-party, particularly in a situation where the minor is not being represented through his legal and natural guardian. Therefore it enjoins upon the Court a special obligation as ultimate guardian to require the next friend to explain as to the benefit which the minor is going to gain on account of such withdrawal. This aspect is conspicuously missing in the instant case. Both the Courts have not gone into the wisdom of law in protecting the rights of minor litigant, but has only confined themselves to sketchy interpretation of the provisions of Order 32, Rule 7, C.P.C. And Order 23, Rule 1.
12. In the light of above as the interest of the minor in withdrawing the earlier suit was not kept in view by the Courts, the order allowing 'the withdrawal was passed as a matter of routine, as if the withdrawal is by a major party, therefore, the withdrawal in the earlier suit vis-a-vis appellant No,2 would not create a bar to the filing of subsequent suit on his behalf. Consequently, the judgment and decree of the Court in appeal regarding dismissal of the appellant No,2's appeal is illegal and unlawful. As regards appellant No,1 admittedly, she was a major at the time of the earlier suit, had given up her claim voluntarily. Therefore, the second suit on her behalf was not competent. The submission made by the learned counsel that as the interest of both the appellants is inseparable, therefore, the judgments of the Court below on the above question be set aside for both the appellants.
13. I am afraid that from the facts and circumstances of the instant case, the rights or interests of both the appellants are independent. Appellant No,2 could validly maintain 'his suit without the association of appellant No,1, therefore, this plea has no force and is rejected.
14. As learned Appellate Court has not given any finding on the issue with regard to full ownership of Mst. Bhag Bhari and validity of gift by her, therefore, it is expedient that the case to be remanded to Court in appeal for determination of other issue.
' In the light of above, the appeal to the extent of appellant No,2 is accepted. The judgment and decree of the Court below with regard to competency of the suit 'filed by appellant No,2 is set aside, case is remanded to the Court in appeal to decide the other issues in controversy between the parties. As regard appeal filed by the appellant No,1 the same is hereby dismissed.