HADI BUX MEMON through Attorney vs CITY DISTRICT GOVERNMENT, KARACHI

ORDER

1. ' S. ALI ASLAM JAFRI, J.---(1) Granted.

(2) Exemption not necessary in view of the order being passed at serial No,3.

(3) Grievance of Mr. Khan is that the application under O.XXIII, Rule 3, C.P.C. Filed by the plaintiff on the basis of certain documents has been rejected by the learned Single Judge illegally and unlawfully instead of decreeing the suit in terms thereof, hence he prays for setting aside the said order and decreeing the suit.

2. It appears that during pendency of the Suit No,659/1998 (Hadi Buksh v. The City District Government, Karachi and others) an application bearing C.M.A. No,3173/2005 was filed by the learned counsel for the plaintiff praying therein that the suit be decreed in terms of Annexure-A to the said application. For ready reference, the contents of the application are reproduced hereinafter: "It is respectfully prayed on behalf of the plaintiff that this Hon'ble Court may be pleased to decree the captioned matter with no orders as to cost in terms of "Annexure A" being the consent agreed upon by the parties in the captioned matter to which the plaintiff has, in consideration of the said agreement, got made out the pay orders totalling in the amount of Rs,4,70,34,000 (Rupees four crores seventy lacs thirty four thousand only) as required therein.

3. ' Copies of pay orders are annexed herewith as Annexures-B-1 to B-78.

4. ' It is also prayed that in all fairness and to avoid any unwarranted controversy, notice of this application may kindly be given to the following:

(1) City Nazim, City District Government Karachi Civic Centre, Gulshan-e-Iqbal, Karachi.

(2) District Coordination Officer, City District Government, Karachi, behind Civic Centre, Gulshan-e- Iqbal, Karachi.

(3) E. D.O Revenue City District Government, Karachi, Former D.C. Office, East, Sir Suleman Road, Opposite National Stadium, Gulshan-e-Iqbal, Karachi.

5. ' Orders accordingly are solicited in the interest of justice.

6. (Sd.)

7. ' Advocate for the Plaintiff."

8. This application, as it appears is signed only by the Advocate for the plaintiff and does not, bear the signatures of the plaintiff or any of the defendants or their duly authorized agent to enter into any such compromise or sign the same for the said purpose. This application has been rejected by the learned Single Judge by his order dated 16-5-2005. It would be advantageous to reproduce the impugned order which reads as under:- "16-5-2005 ' Mr. Mehmood Ahmed Khan, Advocate, Mr. Muhammad Anwar Tariq, Advocate, Mr. Manzoor Ahmed, EDO (Law)

9. ' Listed application for recording the compromise has been moved by the plaintiff. Mr. Mehmood A.

10. Khan has drawn my attention to the minutes of the meeting dated 12-1-2005 and 2-2-2005. The minutes appear to have been signed by the EDO (Law), Revenue and the attorney of the plaintiff. It does not bear the signatures either of the City Nazim nor of District Co-ordination Officer or Executive District Officer (Revenue). Mr. Manzoor Ahmed, states that some negotiations and proposals were indeed exchanged but never materialized. Since the compromise is disputed and denied by the parties, therefore, same cannot be recorded.

11. ' Mr. Mehmood Ahmed Khan states that since it has been singed by the counsel for CDGK.

12. Therefore, it is binding on him. Mr. Manzoor Ahmed states that indeed it was prepared but later on it was never implemented for want of authorization and approval by the City Nazim. Accordingly such statement cannot be enforced. The listed C.M.A. Stands dismissed.

13. ' Mr. Khan learned counsel for the appellant argued that the Court can allow a compromise application even on a verbal agreement, whereas agreement in this case is in writing. In our view the argument advanced by him is misconceived under the facts and circumstances of the case in hand as annexure 'A' which is the basis for the filing this application does not bear any approval or authorization by the City Nazim. It also does not bear signatures of D.C.O. (CDGK) and Executive District Officer (Revenue) CDGK, hence has no legal sanctity in the eye of law. Learned counsel further contended that where parties execute a contract and back out from it, evidence be recorded for the purpose of satisfaction of the Court. This submission too has no force in the light of the facts of the case in hand as discussed above. Had the Defendants and their counsel been a signatory to the application under Order XXIII, Rule 3, C.P.C. And subsequently denied the execution of the same, perhaps an occasion would have arisen for recording of evidence or further probe into the matter.

14. ' Even from the perusal of the application filed by the Plaintiff, it appears that it is signed only by the learned Counsel for the Plaintiff and none of the Defendants who are City District Government, Karachi KBCA and the Province of Sindh, or their Counsel or their duly authorized agents under the law and rules have signed the said application or supported the same in Court, on the contrary factum of any such compromise having been finalized for being enforced has been denied by Mr. Manzoor Ahmed, learned Counsel for the CDGK.

15. In order to allow an application under Order XXIII, rule 3, satisfaction of the Court is necessary. What is satisfaction, is a relative term and shall differ from case to case. The facts and circumstances of the case in hand do not show that any compromise within the meaning of Order XXIII, rule 3, C.P.C.

16. Has ever taken place or materialized between the parties at any time, more particularly when Defendant No,3 being the `Province of Sindh' has been sued through Secretary Land Utilization Department, whereas Defendant No,1 is 'City District Government, Karachi, K.D.A. Wing' and Defendant No,2 is the Karachi Building Control Authority, which is a statutory body to sue or to be sued as per law. The suit under the circumstances could not be disposed off without there being any consent recorded by the defendants under the signatures of their duly authorized agents or functionaries as per law and rules. On the contrary the learned Counsel for City District Government, Karachi has made a categorical statement that the alleged compromise was never materialized for want of authoritative approval of City Nazim and the document annexure 'A' produced by the Appellant/Plaintiff(s) supports the contentions of Mr. Manzoor Ahmad.

17. ' We have minutely examined the impugned order which appears to be in accordance with law and based on sound reasonings, we do not find any illegality or irregularity in it so as to justify any interference.

18. For the reasons as discussed above, this appeal is dismissed in limine with costs. However, the Plaintiff may repeat any such other application, if any compromise as per law and rules is made and materialized between the parties at any stage during the pendency of the suit.