Nazir Ahmed Reshi and Others vs Roshan Ara and Others

M. Yaqoob Mir, J.—Impugned is the order dated 19.09.2006; passed by learned Additional District Judge, Srinagar whereunder two

preliminary issued have been decided. Petitioner's not satisfied with the order have contended that the order impugned is not in accordance with

law.

For appreciating the controversy in its right direction, it shall be quite advantageous to precisely notice the factual back ground of the case.

Initially on 16.12.1980 suit titled Roshan Ara and Ors. v. Mst. Sara Begum and Ors. was instituted before this Court to the effect that, one Mohd.

Ismail Reshi deceased had left behind the property which include Prince Hotel situated at Pahalgam so plaintiffs (respondents/herein) being the

legal heirs are entitled to the suit property. Subsequently, plaintiff (respondents) sought amendment, so, amended plaint came to he filed on

20.02.1981 wherein rest of the property left behind by the deceased was included in the suit as detailed in the plaint Since the plaintiff No. 1 to 3

(respondents herein) were minors, so one Advocate, R.N. Koul acted as next friend but subsequently, maternal grand father of the minors,

Habibullah Gatoo was appointed as Guardian by die District Judge, Anantnag. On 19.12.1981, application seeking to sell the property of minors

to the extent of their share was filed. This Court vide order dated 24.12.1981 held that Habibullah Gatoo has been appointed as Guardian,

therefore, Sh. R.N. Koul, Advocate, who was acting as next friend stands discharged from his duty and Habibullah Gatoo was directed to be

shown as Guardian of the minors- plaintiffs. Said Habibullah entered, into compromise with defendant No. 11 and 12 on 24.12.1981 copy of

which is on the file whereunder property to the extent of the share of minors has been valued at Rs. 48,000/-. In lieu thereof, agreed to be

surrendered in favour of defendant No. 11 and 12 namely; Mohd. Ramzan Reshi and Nazir Ahmed Reshi. But this compromise has not been

attested by the Court. Further more, appointed guardian had shown disinclination to appear before the Court. In view of the refusal, compromise

arrived at in between the parties could not be attested as is reflected in order recorded on 31.05.1985. During the proceedings, plaintiff No. 1 and

2 Shabir Ahmed and Tariq Ahmed attained the age of majority. Whether the compromise could be acted upon or not was to be considered as is

referred' in order dated 19.10.1985. Vide order dated 14.05.1986 two preliminary issues were framed which read as under:

Whether any compromise has taken place with regard to the suit property between defendants 11 and 14 and the guardian ad-litem of plaintiff 1

to 3? If so, what is its effect on the suit?...OPD.

In case issue No. (1) is proved, whether the property belonging to defendants 20 to 22 is included in the compromise and if so, what is its

effect?...OPD.

The production of evidence was in progress, thereafter, case came to be transferred to the Court of District, Judge, Srinagar then seem to have

been transferred to the Court of Additional District Judge, Srinagar, for disposal under law. Finally, learned Additional District Judge, Srinagar, has

decided two preliminary issues vide, impugned detailed judgment dated 19.09.2006. While deciding issue No. 1 against the defendants opined that

matter has been pending for long time still has not crossed the infancy stage so has impress the parties to co-operate in disposing, of the case at the

earliest. As such, matter has been posted for recording rest of the issues.

Learned trial Judge while returning finding on issue No. 1 had appreciated all the contentions and position of law and has concluded that

compromise in between the Guardian-ad-litern, Habibuulah Gatoo and defendant No. 11 and 12, has been proved but has opined that same is not

binding on the plaintiffs No. 1 to 3. The Guardian-ad-litem without the requisite leave of the court as required under order 32 Rule (7) CPC has

entered into compromise so is not legally valid. Further more is voidable at the instance of plaintiff No. 1 to 3 who have now become major.

Appearing counsel for the petitioner contended that the compromise has been validly entered into and value of the share of trip property of

minors amount to Rs. 48,000 has been paid to Guardian-ad-litem, therefore, plaintiffs 1 to 3 are bound by the compromise.

Confronted with this position, appearing counsel for respondents contended that the compromise entered into in absence of the leave is not

valid, secondly, Rs. 48,000/- as claimed to have been paid to the Guardian-ad-litem is not evidenced by any document; an even if paid, has no

effect on the rights of the plaintiffs. He further added that the revision petition is not maintainable as the order impugned is interlocutory.

Order 32 C.P.C has benign object to safeguard the interests of minors and persons of unsound mind prohibits institution of the suit on behalf of

minors and persons of unsound mind in absence of next friend. Similarly, when there are minor defendants or persons of unsound mind, court has

to appoint proper person to be the guardian for the suit. Order 32 Rule (7)CPC ordains how and when the compromise by next friend or guardian

for suit property can be entered into. As per Sub Rule (1) of Rule (7) CPC, guardian cannot enter into any compromise on behalf of the minors

without the leave of the court to be expressly recorded in the proceedings. The object to sale guard the interests of minors is further protected i.e.

even the appointed guardian or next friend cannot enter into compromise without leave of the court, so leave of the court is a precondition which

has to be mandatorily followed. The object of order 32 Rule (7) CPC cannot be permitted to be frustrated by any means directly or indirectly

when the law provides for following a particular form and procedure, same has to be followed in its strict sense so as to advance object and

purpose for which it has been enacted.

The compromise in between the guardian-ad-litem, Habib Ullah Gatoo and defendants No. 11 and 12 is not valid in the eyes of law for want of

leave of the court. Though the guardian had applied for leave to sell share of the minors but as referred hereinabove, pursuant to order dated

24.12.1981, said application has been disposed of only to the extent of replacing the guardian to discharge Mr. R.N. Koul, a next friend. When it

is so, permission cannot be deemed to have been granted because that situation is controlled by the pain wording of Sub Rule (1) of Rule (7) of

order 32 C.P.C wherein it is ordained that leave of the court must be expressly recorded so there is no expressly recorded so there is no expressly

recorded order which would empower the appointed guardian to enter into compromise. Learned Trial Court has correctly appreciate the matter

and has rightly returned the finding in favour of the plaintiff (respondent).

The second issue was not found required to be dealt with in view of the finding returned on issue on. 1, rightly so.

The contention of the appearing counsel for the respondents that the order is interlocutory, therefore, revision will not lie, is misconceived, so

liable to be rejected. Proviso to Sub-section 1 of Section 115 CPC answers contention; same is reproduced herein:

Provided that the High Court shall not, under this section vary or reverse any order made, or an order deciding an issue, in the course of a suit or

other proceeding, except where:

(a) the order, if it had been made in favour of the party applying for revision, would have finally-disposed, of the suit or other proceeding, or:

(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

The court can exercise the powers vis-a-vis all the orders subject to the satisfaction of the conditions. Proviso is clear to the effect that this

Court can vary or reverse any order or an order deciding any issue in the course of a suit or other proceedings, subject to conditions i.e. if the

order finally disposes of the suit or proceedings, secondly, it causes failure of justice or causes irreparable, injury to other side.

Viewed thus, revision petition is found devoid of force, so is dismissed.

Learned Counsel shall ensure presence of the parties before trial-court on 24.04.2008.