P.C.Pandit, J. - (1.) INDER Mal and his three nephews Amar Nath, Romesh Kumar and Bhagwan Dass brought a suit against Shrimati Gurnam Kaur, Ishar Singh and Titar Singh for a declaration that they were the owners in possession of the land in dispute. It might be mentioned that Romesh Kumar and Bhagwan Das, being minors, had brought the suit through their next friend Amar Nath, their real brother. After contest, the suit was decreed by the trial Court.
(2.) AGAINST that decision, Ishar Singh filed an appeal before the learned District Judge, Bhatinda. During the pendency of the appeal, on 29th November, 1967, the following proceedings took place before the learned District Judge: Inder Mal Respondent (on ` A.) Since no evidence from the revenue record indicating that the land in suit had been allotted in lieu of the land mentioned in paras Nos. 1 and 4 of the plaint during the consolidation of holdings has been produced, there is likelihood of the suit being dismissed on a technical ground. Therefore, I pray orally for withdrawal of the suit with permission to institute fresh suit on the same cause of action." "Statement of Shri Chiranji Lal Advocate for other Respondents. Under instructions from Amar Nath on his behalf and as next friend of Romesh Kumar and Bhagwan Dass I state that they may be allowed to withdrawal the suit with permission to institute fresh suit on the same cause of action. There is some lacuna in the case on the basis of which there is likelihood of the suit being dismissed on technical ground." "Statement of Shri Lal Chand, Pleader for the Appellant. I have no objection if the Plaintiff -Respondents are allowed to withdraw the suit with liberty to institute fresh suit on the same cause of action. I admit that there is lacuna in the evidence on both sides and the case may not be correctly disposed of on account of the said lacuna. I claim no costs." After the statements had been recorded, the learned District Judge came to the conclusion that there was some lacuna in the case and there was likelihood of the suit being dismissed on account of a formal defect. According to him, there was sufficient cause for granting the permission asked for by the Plaintiffs that they be allowed to with - draw the suit with liberty to institute a fresh one on the same cause of action. He, accordingly, allowed the appeal, set aside the decree of the trial court and granted the necessary permission to the Plaintiffs. Against this order, the present revision petition has been filed by Amar Nath and his two brothers Romesh Kumar and Bhagwan Das. The only Contention raised by the learned Counsel for the Petitioners was that two of the Plaintiffs Petitioners, namely, Romesh Kumar and Bhagwan Das, were minors and the provisions of Order 32 Rule 7, Code of Civil Procedure, had not been complied with by the learned District Judge, before permitting the Plaintiffs to withdraw the suit with liberty to file another one on the same cause of action. It was contended that no next friend or guardian in the suit could, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of the minor with reference to the suit in which he acted as the next friend or guardian. The submission was that the learned Judge had not granted the required leave and the same was not recorded in the impugned order. That being so, the order under revision should be quashed. There is no merit in this contention. It was not the case of the Petitioners either before the learned District Judge or in the grounds of revision in this Court that the withdrawal of the suit, in the instant case, was in pursuance of an agreement or compromise entered into with the Defendants. It was only then that the withdrawal had to be with the sanction of the Court under the provisions of Order 32 Rule 7, Code of Civil Procedure. It is undisputed that if the withdrawal was not in pursuance of an agreement or compromise entered into with the Defendants, the sanction of the Court was not necessary and the withdrawal was binding on the minor Plaintiffs, provided there was no fraud or gross negligence on the part of the next friend. But this in not the case set up by the Petitioners here. As a matter of fact, in the grounds of revision, the only position taken was that the Petitioners had not authorised either Inder Mal or their Advocate Shri Charanji Lal to withdraw the suit on their behalf and the withdrawal of the suit was not in any way in the interest of the Petitioners. Further, that there was no format defect or lacuna in the case on the basis of which there was likelihood of the Plaintiffs' suit being dismissed. The result is that this petition fails and is dismissed, but with no order as to costs. ;