Compromise deed--Applicants were minors at time of compromise deed--Settlement of matter in criminal case--Property mentioned in compromised deed was transferred to present petitioners--

 PLJ 2024 Peshawar (Note) 62

[Mingora Bench (Dar-ul-Qaza), Swat]

Present: Muhammad Naeem Anwar, J.

ANWAR ALI and another--Petitioners

versus

ABDUL HAKIM and others--Respondents

W.P. No. 753-M of 2021, decided on 8.5.2023.

Civil Procedure Code, 1908 (V of 1908)--

----S. 12(2) & O.XXXII R. 7--Dismissal of application against order of lower Court--Civil revision--Dismissed--Validity--Compromise deed--Applicants were minors at time of compromise deed--Settlement of matter in criminal case--Property mentioned in compromised deed was transferred to present petitioners--Deprivation of petitioners to their legal and shari share--Both applicants were minors i.e., date of compromise and were being represented through their respective guardians--They have alleged that their interest had not been protected legally with collusion of their counsel--The father of petitioners, was done to death and during pending adjudication of criminal case, matter was patched up with accused on strength of deed--Joint statement of parties was recoded before Sessions Judge  and property mentioned in compromise deed was transferred to present petitioners--Pedigree table had not only clarified relationship in explicit tenns but narrowed down controversy amongst parties pending adjudication through instant lis with specific reference to decision and compromise in criminal case pertaining to unnatural death of Muhammad Akbar--Petitioners had been deprived of their legal and shari share in legacy of their paternal grandfather--The impugned orders of Courts below were not sustainable i.e., (i) facts alleged and denied were not thrashed out as parties were not provided opportunity to prove their respective contentions through recording of evidence; and (ii) provisions of order XXXII rule 7 C.P.C had not been complied with at time of compromise in suits--The impugned orders of both Courts below were illegal and suffering from material irregularity--Petition allowed.            [Para 4, 5, 7 & 8] A, B, C, D, E & F

Mr. Rahimullah Chitrali, Advocate for Petitioners.

M/s. Shah Faisal Khan, Syed Ahmad Chitrali and Adalat Khan, Advocates for Respondents.

Date of hearing: 8.5.2023.

Judgment

This single judgment in the instant petition shall also decide connected W.P No. 751-M/2021 titled “Anwar Ali and another vs. Mst. Benazira and others” and W.P No. 752-M/2021 titled “Anwar Ali vs. Mst. Benazira and others” as an identical question of law and facts is involved in all these petitions.

2. By invoking the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, through instant petition, the petitioners have questioned the validity and correctness of the order of the learned Additional District Judge/lzafi Zila Qazi-11, Swat dated 17.07.2021, whereby their Civil Revision No. l6/CR of 2021 against the order of the learned Civil Judge/Illaqa Qazi-1V, Swat dated 09.03.2021 dismissing their application under Section 12(2) of the Code of Civil Procedure, 1908 (C.P.C) in Civil Suits
No. 217/1 of 2002 & 294/1 of 2002 decided on 28.07.2010 filed on the ground of fraud, misrepresentation of facts and collusion inter the respondents, was dismissed whereas, connected W.P No. 751-M/2021 titled “Anwar Ali and another vs. Mst. Benazira and others and W.P No. 752-M/2021 titled “Anwar Ali vs. Mst. Benazira and others'' are the outcome of the orders of the learned Revisional Court dated 17.07.2021 in C.R No. 22/CR of 2021 and C.R No. 23/CR of 2021, whereby orders of the learned trial Court (Civil Judge/Illaqa Qazi-VI, Swat) dismissing applications of petitioners pertaining to adjourn the proceedings of Civil Suits tilted “Mst. Benazira and another vs. Sharaf-ud-Din and others” and “Mst. Benazira and others vs. Anwar Ali and others” were dismissed, being based upon the decision of the earlier suits challenged by the petitioners in their application under Section 12(2), C.P.C, which is subject matter of the instant petition.

3. Arguments heard and record perused.

4. Suit No. 217/1 was instituted by Mst. Benazira daughter of Ajab Khan wife of Abdul Hakim against the present petitioners through their next friend (mother Mst. Hassan Bibi, wife of Muhammad Akbar) along with Mst. Izzat Bibi, the daughter of Ajab Khan and Mst. Guldana, the widow of A jab Khan. The claim of the plaintiffs of Suit No. 2 I 7/1 was to the effect that she had been gifted property measuring 06-kanal 17-marla or 37500 square feet through gift deed dated 11.04.2000 from the property as described at Serial No. 2 of the plaint, and the property mentioned at Serial No. 3 of the plaint was given to Defendant No. 4 who, later on, gifted it to her through gift deed dated 06.10.2009 whereas in rest of the property, she was entitled to her shari share being the daughter of Ajab Khan. Another Suit No. 294/1 instituted on 09.05.2002 by Shaukat Ali (the petitioner No. 2), through his next fried/mother Mst. Hassan Bibi against Abdul Hakim, Abdul Wadood, Mst. Guldana, Mst. Bcnazira and his brother Anwar Ali seeking therein recovery of possession of the property as described the plaint on the strength of deed dated 17.01.2001. Suit No. 217/1 was decreed on 21.11.2009 wherein though a decree was granted in favour of Mst. Benazira, however, the interest of the minors (present petitioners) was protected whereas it was held by the civil Court vide its judgment and decree dated 21.11.2009 that the plaintiffs of Suit No. 294/1 could not prove his claim on the strength of deed dated 17.01.2001. The judgments and decrees of both the suits were assailed through Civil Appeals No. 19/13 and 20/13 of 2010, which were decided by the learned Additional District Judge/Izafi Zila Qazi, Swat at Bahrain through a common judgment dated 11.03.2010, whereby both the judgments and decrees of the learned trial Court were set aside and the parties were directed to appear before the Civil Court. During proceedings, on 28.07.2010, an application was moved before the learned trial Court that though both the cases have been fixed for 30.7.2010, however, since the parties have patched up the matter, therefore, the matter may be decided on the basis of the terms so settled amongst them. Joint statement of Abdul Hakim, the special attorney for Mst. Benazira, Mst. Guldana in person and as next friend of Anwar Ali and special attorney for Mst. Izzat Bibi along with Mr. Hamayun Khan, Advocate counsel for the defendants was recorded before the learned trial Court on 28.07.2010 and being based upon the terms and conditions so settled between them, the learned trial Court on 28.07.2010 decided the suit. The instant lis is the outcome of decision in Civil Suit No. 217/1 titled “Mst. Benazira vs. Anwar Ali and athers” and Civil Suit No. 294/1 titled “Sitaukat Ali vs. Abdul Hakeem and others”. It was contended by the petitioners and an admitted fact that both the applicants were minors on 28.07.2010 i.e., the date of compromise and were being represented through their respective guardians. They have alleged that their interest has not been protected legally with the collusion of their counsel, Respondents Nos. 1 & 2 whereby the properties which were the outcome of a decision dated 17.01.2001 pertaining to the settlement of matter in case FIR No. 15 dated 12.06.1998 under Section 302/34, PPC registered at Police Station Kalam District Swat wherein Muhammad Akbar, the father of the petitioners, was done to death and during pending adjudication of said criminal case, the matter was patched up with accused on the strength of deed dated 16.12.1999. Joint statement of the parties was recoded before the learned Sessions Judge on 18.12.1999 and the property mentioned in the compromise deed was transferred to the present petitioners namely Anwar Ali and Shaukat Ali, as such same was their exclusive ownership and thus other legal heirs of Ajab Khan have got no concern whatsoever with said property, who was survived by Mst. Guldana, the widow, Mst. lzzat Bibi and Mst. Benazira as daughters and Muhammad Akbar, the son. Muhammad Akbar has contracted marriage with Mst. Hassan Bibi and this wedlock was blessed with two sons namely Anwar Ali and Shaukat Ali (the present petitioners). The pedigree table of Ajab Khan, for convenience, is reproduced as under:

 

 

 

 

 

 

 

 

 

 

 

5. The aforementioned pedigree table has not only clarified the relationship in explicit tenns but narrowed down the controversy amongst the parties pending adjudication through instant lis with specific reference to the decision and compromise in criminal case pertaining to unnatural death of Muhammad Akbar, the father of petitioners and husband of Mst. Hassan Bibi. They have also alleged that the compromise in civil suits has been procured in absence of their respective guardians, whereby another counsel was engaged for their mother, which resulted into compromise “and decision thereon and hence they have been deprived of their legal and shari share in the legacy of their paternal grandfather Ajab Khan, who at the time of his death, was survived by a widow, two daughters and a son Muhammad Akbar, however, record reflects that unnatural death of Muhammad Akbar had taken placed earlier to the death of Ajab Khan and in view thereof, the petitioners were entitled for their legal and shari share in the property of their grandfather Ajab Khan, which ought to have been devolved upon their father Muhammad Akbar in terms of Section 4 of the Muslim Family Laws Ordinance, 1961. In sub-Para IV of Para No. 11 of the application, it was averred by the petitioners that:

یہ کہ والدہ سائلان جو کے پردہ نشین ، ان پڑھ اور دیہاتی عورت ہو کر پشتو اور اُردو زبان سے نا آشنا ء اور بولنے لکھنے اور پڑھنے سے قاصر اور عاری ہے، کو غلط بیانی کے ذریعے اس کے وکیل کی عدم موجودگی میں اپنی مرضی کا وکیل مقرر کر کے نہایت ہی عجلت میں راضی نامہ کا بیان قلمبند کر کے فیصلہ حاصل کیا ہے۔

This fact was outrightly refuted by the contesting respondents by alleging that the property was given to the minors (plaintiffs as then they were), as such, the instant application requires dismissal summarily without recording of evidence, however, it is an admitted fact that the application was decided without recording of evidence. Though, it is not sine qua non for the Court to frame issue and to record evidence in each and every application filed under Section 12(2), C.P.C in view of the principle enunciated by the apex Court in case of “Amina Bibi through General Attorney vs. Nasrullah and others” (2000 SCMR 296), however, this is not the rule of thumb, the circumstances depend upon the factual aspect and where the case requires recording of evidence, the decision thereof must be based upon the evidence by providing an opportunity to the parties to prove their respective contentions. Since, the petitioners have categorically contended that (i) the subject matter of criminal case was their owned property with exclusion of anyone else; (ii) the consolidated proceedings before the Court in both the suits were fixed for 30.07.2010 wherein their mother was being represented by her counsel who (the mother) was representing them and protecting their rights/ interest being minors but surreptitiously and collusively not only the application was submitted on 28.07.2010 for decision of the suits through compromise, but also the files were requisitioned, joint statement of the parties was recorded and a fresh counsel was engaged for their mother namely Mst. Hassan Bibi, who as per their contention, was not familiar with Urdu, Pashto or English languages because she was a rustic villager, uneducated and parda observing lady. This fact was denied by the respondents, which factual aspect of the matter could not be decided without recoding of evidence.

6. More-so, guardian at-litem and natural guardian both are to protect the rights and interest of the minor. But when the guardian acts in the interest of minors and a compromise is affected the provision of Order XXXII Rule 7, C.P.C shall come into play. When learned counsel for the respondents was confronted as to whether the provisions of Order XXXII Rule 7, C.P.C were complied with in consonance with the referred to above law, he was unable to explain it. Order XXXII Rule 7, C.P.C reads as under:

“7. Agreement or compromise by next friend or guardian for the suit. (1) 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.”

7. Impugned judgments/orders of the learned trial Court are silent regarding the compliance of the provision of Order XXXII Rule 7 C.P.C regarding the specific permission and order of the Court, as intended by the legislature. The interest of the minors could be protected, defended or claimed through next friend but whenever the factum of compromise or any agreement is referred or placed before the Court involving the interest of the persons being party to the suit, the permission of the Court is sine qua non, which in the instant inatter has neither been obtained by the parties nor the learned trial Court has adverted to this legal aspect, as such, on two scores, the impugned orders of the learned Courts below are not sustainable i.e., (i) the facts alleged and denied were not thrashed out as the parties were not provided the opportunity to prove their respective contentions through recording of evidence; and (ii) the provisions of Order XXXII Rule 7, C.P.C have not been complied with at the time of compromise in the suits. During the course of arguments, though learned counsel for the respondents has relied upon the case law i.e., the precedents of the superior Courts but keeping in view the facts and circumstances of the case as referred to above in juxtaposition with the compliance of the provisions of Order XXXII Rule 7, C.P.C, the case law relied upon by the respondents could not be applied being distinguishable.

8. Thus, for the reasons discussed above, I am of the considered view that the impugned orders of both the learned Courts below are illegal and suffering from material irregularity, as such, this as well as connected petitions are allowed, the impugned orders of the learned Courts below are hereby set aside, resultantly, the learned trial Court is directed to frame issues in view of the divergent pleadings of the parties being based upon the Application under Section 12(2) C.P.C, record evidence and then to decide the application in accordance with law. However, keeping in view the long span of time, for which, the parties are litigating, the learned trial Court shall decide the fate of the application preferably within five (OS) months if not earlier, after receipt of the copy of this judgment. Since, suits of petitioners of the connected petitions are based upon the decision of the earlier suits, which is the Subject matter of the application under Section 12(2), C.P.C filed by the petitioners on the grounds referred to above therefore, the proceedings in Civil Suits tilted “Mst. Benazira and another vs. Sharaf-ud-Din and others” and “Mst. Benazira and others vs. Anwar Ali and others” till final decision of the application under Section 12(2), C.P.C are hereby stayed and after decision in the application under Section 12(2), C.P.C, either of the parties may file an application for resurrection of their respective suits. No order as to cost.

(Y.A.)