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Civil Revision No. 11 of 1977, decided on 24th April, 1977.

-- O. XXIII, r. I read with O. XXXII, r. 7-Withdrawal of suit, on behalf of minor through next friend-Next friend praying for with drawal of suit for reason that next friend unable to bear expenses of litigation and that withdrawal would be in interest of minor- ' Court allowing withdrawal of suit and passing order "Permission is accorded"-Held, trial Court not conscientious and judicious of mind while granting permission to withdraw suit and passing order of dismissal --Bounden duty of Court to see that withdrawal effected in interest of minor and reasons to be advanced in order of withdrawal--Leave granted to withdraw suit on behalf of minor Order set aside and case remanded for trial and disposal in accor dance with law.

Mohammad Hanif Khan for Petitioner.

Nemo for Non-Applicants.

This is a revision petition against an order dated 20th November 1976 passed by Sub-Judge, Bagh by which. Mst. Asbraf Jan, the next friend of the minor-plaintiff Mst. Mohbat Bi was allowed to withdraw the suit. Mst. Asbraf Jan, the next friend and Mst. Mohbat Bi, the minor-plaintiff are the real sisters. The former is married to one Gul Hussain.

After the death of the father of the girls, the property left by their father was inherited by the mother of the girls, named Ashkar Bi and a sister of the deceased and the daughters themselves.

It so happened that Mst. Ashraf Jan, the mother of the plaintiff petitioner entered into a second marriage with one Fateh Alam son of Qasim Ali, the respondent.

The land inherited by the legal heirs of Sher Mohammad was sold to Qasim Ali respondent by Ashkar Bi, the widow, Mst. Kammi, the sister and Mst. Mohbat Bi, the minor through the mother acting as her guard an - This sale to the extent of the share of Mohbat Bi, minor was by W. Mohbat Bi through Gul Hussain, her next friend. Gul Hussain was replaced by his wife Mst. Ashraf Jan as a next friend of the minor-plaintiff. It was very soon after her becoming the next friend of the plaintiff that an application for permission of withdrawal of the suit was made by Mst. Ashraf Jan which was accepted and she was allowed . to make the withdrawal of suit, which was accordingly made and consequently the suit was dismissed by the Court.

In the matter of withdrawal it was reasoned by the next friend that the plaintiff was unable to bear the expenses of litigation and that the withdrawal would be in the interest of the minor. There was no apparent benefit of the minor in the withdrawal of the suit. Gul Hussain, the first next-friend made a statement before the Court that he wanted to continue the suit just to obtain the land for his wife who is obviously Mst. Ashraf Jan, the second next-friend substituted in his place. It was how he was removed from the prosecution of the case and Mst. ' Ashraf Jan was allowed to act as a next-friend of the minor. The perusal of the orders made by the Sub-Judge in respect of withdrawal of the suit shows that he was not at all conscientious aid judicious of mind while granting permission for with drawal of the suit and passing an order in dismissing the suit. It is the bounden duty of Court to see that the withdrawal of the suit is effected in the interest of the minor and for that, reasons are to be advanced by the Court in the orders to be made by it in this behalf so that visibility of the interest or benefit of the minor should be open there. The first order which was made by the Sub-Judge on the application for leave to withdraw was simply written in these words : "Permission is accorded." Evidently, there is no reason whatsoever, given for grant of this application. Again, the impugned order is absolutely silent so far as the role of the Court is concerned to give reasons while making an order dismissing the .suit. Thus we see that the learned Sub-Judge had not properly exercised the judicial discretion in granting the leave to withdraw the suit on behalf of the minor. As already indicated, the learned Sub-Judge did not work to the satisfaction of his mind that the withdrawal was for the benefit of the minor. He lacked to give a proper finding in the matter containing the reasons. The learned Counsel for the petitioner who has moved the petition on behalf of the next-friend, Faqir Mohammad by name gives assurance that the next. friend for being related to the minor is prepared to incur all the expenses in the litigation and will not betray the minor in any manner, whatsoever. The trial Court to which the case is going to be remanded for trial shall take a bond from him (next friend) that he will be personally responsible for the expenses of the plaintiff in connection with the prosecution of the case till it is finally disposed of by the Court.

Thus, for the reasons above, this revision petition is accepted, and the impugned order of the trial Court is set aside and the case is re manded to it for its trial and disposal in accordance with law. Faqir Mohammad would be substituted as the next friend of the minor in the original suit to be restored to its original number.

M. Y. M. Revision accepted,

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