R1AZ KAYANI, J. - The petitioners-defendants have assailed in this Civil Revision the decree passed in favour of the plaintiffs/respondents by the Civil Judge, Lahore dated 4.1.1984 and maintained in appeal by the District Judge, Lahore, vide his judgment dated 4.6.1984.
2. Briefly the facts of the case are that the sale of the land in question was made by Noor Ellahi through a registered sale-deed dated 14.1.1979 in favour of the petitioners. Respondents namely Muhammad Hussain and Muhammad Hassan tiled a suit to pre-empt the sale on the ground that they were owners in the village and owned land contiguous to the suit property. Respondents/defendants contested the suit and raised a number of pleas in defence. The parties concluded their evidence on the issues framed and the case was fixed tin- arguments when an application was made that the parties have reached a compromise which should be noted down and the decree he passed accordingly. On 4.1.1984 Muhammad Aslam Baig defendant/petitioner made an application on his behalf and on behalf of the remaining defendants, as their attorney, to the effect that if the plaintiffs/respondents withdraw the suit, he was ready to give them Khasra No. 4108/1 measuring 10 kanals, 15 marlas tor Rs.11000/-. Muhammad Hassan plaintiff-respondent in his personal capacity and as attorney of his brother Muhammad Hussain-respondent, agreed to this arangement.
Accordingly the learned Civil Judge decreed the plaintiffs/respondents' suit to the extent of Khasra No. 41081/1 measuring 10 kanals, 15 marlas on payment of Rs.11000/- and dismissed the suit with respect to the remaining land.
3. The vendees/petitioners tiled an appeal which was dismissed by the learned District Judge, Lahore on 4.6.1984 on the ground that it was a consent decree and no appeal was available to the parties.
4. Judgment and decree of the Civil Judge, Lahore dated 4.1.1984 and that of District Judge, Lahore dated 4.6.1984 has now been assailed in this Civil Revision.
5. Learned counsel appearing on behalf of the petitioner contended that Qasim Baig son of Barkat Baig was a minor and objection was taken in the written statement that the suit cannot he brought against him unless the provisions of Order 32 Rule 3, CPC he complied with. Permission was granted by the Court and Maqbool Baig another petitioner/defendant was appointed as guardian ad !Item. The plaint was accordingly amended. However, imperative of law, it is contended, still was not fulfilled as mandatory provision of order 32 rule 7, CPC was not complied with in as much that before entering into a compromise no leave of the Court was obtained of behalf of the minor to the said compromise. It was next contended that the attorney had no authority to compromise the lis with the opposite party having not been specifically authorized by the contents of the power-of- attorney executed in his favour by the other petitioners.
6. Learned counsel for the respondents contended, in reply, vehemently, that the validity of compromise to be without the leave of the Court; on behalf of the minor, was not agitated before the Appellate Court and a legal presumption arose in law that no detriment or harm was done to the interest of the minor. It was contended that both the parties obtained benefit from the decree and it could not he said to he one sided, favouring one party, to the prejudice of the other. Reliance was placed on 'Messrs Ghulam Farid Muhammad Lail Vs. The Central Bank of India Limited Lahore (PLD 1954 575) wherein the Hon'ble Judge while exercising his revisional jurisdiction held that where substantial justice has been done High Court will not interfere.
7. I have carefully attended to the arguments of the learned counsel for the parties and have gone through the tile of the lower Court.
Order 32 Rule 7; CPC when reproduced reads as under:- "No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian."
Sub-section (2). "Any such agreement or compromise entered into without the leave of the Court so recorded shall he voidable against all parties other than the minor."
Similar provisions exist in the Civil Procedure Code in Section 147 which for facility of reference is reproduced below:- "in all suits to which any person under disability is a party, any consent or agreement, as to any proceedings shall, if given or made with the express leave of the Court by the 'next friend or guardian for the suit, have the same force and effect as if such persons, were under no disability and had given such consent or made such agreement."
These provisions are intended to safeguard the interest of the minors or persons of unsound mind or mentally infirm persons who are not capable to protect their interests in litigation by or against them. The Courts have to he very, watchful in safeguarding the interests of the persons suffering under the disability. Rule 7 of Order 32 of the Civil Procedure expressly prohibits the next friend or guardian ad item to enter into any agreement or compromise on behalf of a person suffering from disability without express permission of the Court recorded in the proceedings. The language of the rule is imperative and must he strictly complied with, so much so, that the permission cannot he implied from the mere fact that the Court which passed the decree may have considered the disability and accorded its approval to the agreement being intertwined in the decree itself. The compromise on behalf of the disabled persons in the absence of leave-expressly recorded in the proceedings. Under Rule 7 of Civil Procedure Code cannot be countenanced. However, when the defendant is more than one, such compromise would not he considered as an absolute nullity, because it is binding on all except a disabled person. In other words a compromise effected by a party to the suit having disabled persons amongst them could not he recorded without express permission of the Court unless, it was found to he in the interest and for the benefit of the disabled person. A disabled person is a minor, an in-sane person, or an imbecile and all such persons can challenge the decree where it was based upon a compromise or agreement without following the mandate as ordained under Rule 7 of Civil Procedure Code because such decree could not be termed as a consent decree validly passed. An eventuallity can arise when the interests of a minor are inseperable, in the compromised decree, with those who did not suffer from any disability. In such a case the decree is voidable at the instance of those persons who are not suffering from disability. A compromise can he considered to he favourable and beneficial to the interest of a minor if it secured to him some visible advantage or avoided loss to his interest. In the instant case, .Before passing of the compromise decree leave of the Court was not expressly recorded, what to speak of the finding of the Civil Judge whether the compromise was in the interest of minor or to his detriment. The objection taken by the respondents that this particular ground was not agitated before the Civil Judge, cannot he considered to debar the petitioner to raise it now because it is a question of law and goes to the root of the case. Further, the Courts have always to act like watch- dogs protecting the interests of the minor. Objection, therefore, stands over-ruled.
9. The second ground agitated before me is-that power-of-attorney executed in favour of Muhammad Aslam Baig by the other petitioners did not contain the stipulation permitting him to enter into a compromise, therefore, the compromise entered is not binding on others. I have gone through the power-of-attorney and I find from its terms that it was so exhaustive that attorney stood clothed with almost all the powers enjoyed by the principal. This ground taken up by the petitioners is devoid of force, as such stands rejected.
10. However, I am persuaded to allow the Civil Revision on the ground that imperative provisions of Order 32 Rule 7 of Civil Procedure Code have not been complied with. The result is that the decree passed by the Civil Judge dated 4.1.1984 and that of the Appellate Court dated 4.6.1984 are set aside and the case is remitted to the Civil Judge to determine whether the compromise was beneficial to the interests of the minor-petitioner and if so to expressly record its leave and thereafter to decide the . In the event, Trial Court comes to the conclusion that the compromise was not favourable to the interest of the minor-petitioner then it would decide the case on merits in accordance with law. As regards the major petitioners compromise did not suffer from any legal flaw and was binding upon them.
11. No order as to costs in this Court.
12. Record be returned. The parties shall appear before District Judge, Lahore on 5.5.1999, who shall entrust the case to a Civil Judge competent to hear it.