R. Jayaraman vs A. Perumal and Another

V. Ramaswami, J.—These appeals are against the order setting aside the dismissal of C.S. No. 139 of 1983 as settled out of Court and

restoring the same for trial on merits.

The suit was filed for specific performance of an agreement to sell by the first respondent-plaintiff who was then a minor, represented by his

guardian and next friend, his mother.

On 22.11.1984, on the basis of a memorandum filed by the plaintiff, stating that the suit claim is settled out of Court the suit was dismissed as

settled out of Court. This memorandum was signed by the guardian of the plaintiff and the counsel for the plaintiff. It is admitted by the learned

Counsel for the appellant that no application was filed under Order 32, Rule 7, C.P.C., either by the guardian or by the advocate praying

permission to withdraw the suit on the ground that the parties have entered into a compromise, nor a certificate by the advocate to, the effect that

the agreement or compromise proposed was, in his opinion, for the benefit of the minor was filed in Court. The Court also had not considered the

compromise or the terms of the compromise and expressed its opinion as to whether it was for the benefit of the minor. In fact, the terms of the

compromise were not before the Court and it was only stated that the suit was settled out of Court. The Court therefore could not have exercised

its mind as to whether it was beneficial to the minor or not.

The Madras Amendment to Rule 7 of Order 32 in Clause (1-A) reads as follows:

Where an application is made to the Court for leave to enter into an agreement or compromise or for withdrawal of a suit in pursuance of a

compromise or for taking any other act on behalf of a minor or other person under disability and such minor or other person under disability is

represented by counsel or pleader, the counsel or pleader shall file in Court with the application a certificate to the effect that the agreement or

compromise or action proposed, is, in his opinion, for the benefit of the minor or other person under disability. A decree or order for the

compromise of a suit, appeal or matter, to which a minor or other person under disability is a party shall recite the sanction of the Court thereto

and shall set out the terms of the compromise as in Form No. 24 in Appendix-D to this Schedule.

It may be seen from this that whether the suit is withdrawn as settled out of Court or whether a decree is to be made in terms - of a compromise

memo, or a settlement entered into, an application will have to be filed seeking the permission of the Court to either withdraw or to enter into a

compromise, and the counsel for the minor shall file in Court with the application, a certificate to the effect that the agreement or compromise or

action proposed is, in his opinion, for the benefit of the minor, and the order shall recite the sanction of the Court with regard to the same. Clause

(2) of Rule 7 specifically states that any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable

against all parties other than the minor. Therefore, the minor will have only to plead in order to set aside the withdrawal, that there was no

application by the guardian seeking leave of the Court to withdraw, nor a certificate by the counsel as required in the rule that it was for the benefit

of the minor and that there is an absence of recitation of such sanction or the certificate in the order itself. If he establishes that, he is automatically

entitled to an order setting aside the earlier order and restoring the suit to file. The requirement that the order shall recite the sanction of the Court in

the order itself is probably to avoid an argument that the Court had orally given permission for such compromise or granted the leave. On the

admitted facts, therefore Rule 7 of Order 32, C.P.C., had not been complied with, and since the minor who has now become major is not willing

to ratify the action of the guardian in withdrawing the suit, automatically the decree dismissing the suit has to be set aside and the suit restored to

file. In the view, which we have taken, we see no ground to interfere with the order of the learned Judge. These appeals fail and they are

accordingly dismissed. There will be no order as to costs in both the appeals.

In view of the fact that the defendants were questioning the restoration of the suit in these appeals, it appears that they have not filed the written

statement so far. Accordingly, time for filing written statement is given till the date of reopening of the High Court after the summer holidays. Since

the suit has been pending since 1983, after the written statement is filed by the defendants, the suit will have to be dealt with and disposed of on a

priority basis.