FAZAL MEHDI and others Versus ALLAH DITTA

RAJA FAYYAZ AHMAD, J .---This Civil Appeal has been directed against the judgment dated 1-6-2001 passed by the learned single Bench in Chamber of the Lahore High Court, Lahore whereby Civil Revision No.3378 of 1994 preferred by the appellants against the judgment and decree of the learned Additional District Judge, Mandi Bahauddin has been dismissed.

2. The precise relevant facts of the case are that the respondents instituted a suit for possession through pre-emption of land described in the caption of the plaint measuring 61 Kanals, 3 marlas situated in Monza Sarlay Tehsil Phalia with its standing crops, trees and tube well against Mirza Khan i.e. the predecessor-in-interest of the appellants, sold to him vide registered sale deed dated 16-11-1981 on the ground of being owner of land in said Dell, as well as; being a descendent of a common ancestor which the vendor sold to said Mirza Khan against a sum of Rs.1,00,000 being the sale consideration amount or the price which may be fixed by the learned trial Court.

3. Said Mirza Khan defendant resisted the suit on various grounds of law and facts mentioned therein tiled on 2-10-1987.

Out of pleadings of the parties necessary issues were framed by the learned trial Court on 14-11-1987.

4. The respondent/plaintiff produced evidence in affirmative in support of his case before the learned trial Court on 15-12-1987 and thereafter, the case was fixed for the evidence of the predecessor-in- interest of the appellants from 20-12-1987. On which date, the suit was decreed in favour of the respondents in view of the statement of the parties and their learned counsel requesting to decree the suit on payment of Rs.2,02,000 (Rupees two lace and two thousands). The learned trial Court decreed the suit in favour of respondent/plaintiff in the terms that the defendants shall deposit Rs.2,27,000 before 20-3-1988 after deducting zar-e-panjum, failing which the suit shall stand dismissed.

5. Said Mirza Khan i.e. the predecessor-in-interest of the appellants assailed the decree of the trial Court before the learned Additional District Judge, Mandi Bahauddin, which Court after hearing the parties vide judgment and decree dated 30-9-1989 dismissed the suit of the respondents on the ground that no decree could have been passed after the target date i.e. 31-7-1986 in a pre-emption suit in view of the law laid down by the superior Courts, as well as; the respondent/plaintiff having failed to perform necessary Talbs to enforce his claimed right of pre-emption.

6. This appellate judgment and decree was assailed by the respondent in Civil Revision No.1966 of 1989 before the learned Single Bench of the Lahore High Court, Lahore. The learned Single Judge in the High Court accepted the Civil Revision, set aside the impugned judgment and remanded the case to the said appellate Court with the direction to decide the same afresh and in accordance with law for the reason that the parties' learned counsel agreed and submitted before the said learned Court that the points urged during arguments and raised before the learned appellate Court were not addressed in the judgment assailed in revision.

7. After remand of the case and hearing the parties' learned counsel, the appeal preferred by Said Mirza Khan, who died during pendency of the appeal and his successors-in-interest i.e. the appellants were brought on record, was dismissed mainly on the ground for being incompetent and not maintainable against a consent decree within the meaning of section 96(3), C.P.C.

The appellants feeling aggrieved of the appellate judgment and decree filed Civil Revision No.3378/1994 in the Lahore High Court, which too was dismissed vide judgment impugned herein by affirming the ground on which the 1st appeal had been dismissed.

8. Leave was granted by this Court vide order dated 24-7-2001, inter alia, in view of the contentions raised on behalf of the appellants by their learned counsel.

9. The learned counsel for the appellants contended that the appellants throughout challenged the authenticity of the alleged consent to which even no reference whatsoever had been made by the learned High Court in the impugned judgment. The learned counsel also contended that no decree could have been passed after the target dated i.e. 31-7-1986 by the learned trial Court under the provisions of Punjab Pre-emption Act, 1913 in view of the law laid down by this Court. He further argued that no decree even be a consent decree could have lawfully been passed in a pre-emption suit governed under Punjab Pre-emption Act, 1913, in view of the law laid down by this Court and the revisited dictums of this Court relating to other connected and consequential matters not strictly covered in the judgment passed in the case of Government of N.W.F.P. through Secretary, Law Department v. Malik Said Karal Shah PLD 1986 SC 360. Learned counsel placed reliance on the reported judgments i.e. Sardar Ali and others v. Muhammad Ali and others PLD 1988, SC 287, Major Abdul Lateef and another v. Land Acquisition Collector-IV, Terbela Dam and 2 others PLD 1990 SC 849 and Umer Din and another v. Muhammad Sadiq Hussain and 15 others 1993 SCMR 1089.

He next contended that in fact no consent nor any compromise or settlement was made by Mirza Khan defendant before the learned trial Court on 20-12-1987 i.e. the date fixed for his evidence on which date his appointed counsel in the case namely, Ch. Muhammad Aslam Warriach was not present and the Reader of the trial Court got his thumb-impression on the pretext that he had been bound down to produce his evidence on 17-1-1988 and when the said defendant (Mirza Khan) appeared before the trial Court, on enquiry by his said counsel, it came to their knowledge that on 20-12-1987 decree had already been passed in favour of the plaintiff. The learned counsel emphatically contended that by taking undue advantage of the absence of his appointed counsel; the defendant who was an illiterate person, his thumb-impression was obtained by the Reader of the Court who subsequently managed to incorporate a joint consent of the parties including that of the purported counsel for the said defendant, pursuant to which in absence of Mirza Khan decree was passed by the learned trial Court on the same date.

According to the learned counsel no settlement or compromise was recorded by the learned trial Court nor the purported joint statement at the face of it could be termed or treated as a valid and legal statement of compromise/settlement or a request to decree the suit in favour of the plaintiff, hence; the decree in such factual view of the matter, ex facie, could be said to be a consent decree, consequently; the same was amenable to appeal.

10. Controverting the above contentions put forth on behalf of the appellants, the learned counsel for the respondent submitted that it was a case of consent decree passed by the learned trial Court and, therefore, the impugned judgment is unexceptionable. According to the learned counsel, strict application of the dictum of this Court on the subject referred to by the appellants' learned counsel is unwarranted in view of the latest judgment of a Full Bench of this Court that after the crucial date i.e. 31-7-1986, a pre-emption suit under the Punjab Pre-emption Act, 1913 was governable under the Mohammedan Law as held by this Court in the case of Sarfraz v. Muhammad Aslam Khan and another 2001 SCMR 1062, therefore, the decree passed by the learned trial Court was immune from being attacked for having been passed after the target date on the strength of the cited precedents. The learned counsel strenuously argued that on the basis of compromise and the request made by the defendant in the suit (Mirza Khan) before the learned trail Court on which he also affixed his thumb impression besides the plaintiff, the parties' counsel also put their respective hands on such statements, culminating into a consent decree which thus was not appealable within the meaning of section 96(3), C.P.C., hence; the appeal having been incompetently filed and not maintainable was dismissed, so; no exception to the impugned judgment affirming the appellate judgment could be taken.

11. The contentions put forth on behalf of the parties' learned counsel have been considered in the light of impugned judgment gone through carefully besides the judgment dated 21-9-1994 of the learned Additional District Judge 1, Mandi Bahauddin/First Appellate Court, the judgment dated 20-12-1987 passed by the learned trial Court and the record of the case with the assistance of both the learned counsel. The bare perusal of the impugned judgment and the one passed by the learned first Appellate Court maintained by the. learned Single Judge in the High Court showed that the petitioner was non-suited on the ground that no appeal shall lie against a consent decree within the meaning of subsection (3) of section 96, C.P.C. therefore, in view of the contentions raised on the point before us by the parties' learned counsel and the fact that since the very basis of the consent decree, statedly made/expressed before the learned trial Court by the defendant and urged as a ground in the memo. of appeal filed before the first appellate Court was questioned, so it would instead be appropriate to dilate upon the same being germane to the matter.

12. The consent decree of the even date passed by the learned trial Court followed the judgment dated 20-12-1987 recorded on the diary sheet of the case of the even date, to the effect that the parties and their learned counsel stated that decree in favour of the plaintiff subject to payment of Rs.2,02,000 including the cost of improvements made on the suit land may be passed. The proceedings drawn and taken, as well as; the judgment passed by the learned trial Court pursuant to the above mentioned joint statement of the parties and the learned counsel for convenience and reference are reproduced herein below in extenso:

13. Careful perusal of the above diary sheet dated 20-12-1987 maintained in the case by the learned trial Court shows that on the said date the parties and their learned counsel were present and in the second line it has been written that "compromise effected, statements recorded;" indicating that statements of the parties were recorded by the learned trial Court, although; the same should have preceded the words ( ﺭﺍﻀﻰﻧﺎﻤﻪﻫﻮﺍﺒﻴﺎﻦﻗﻠﻤﺒﻧﺩﮨﻮﮰ ). The proceedings appear to have been completed on the diary sheet of the case. Scrutiny of the original record of the case available with this Court showed that separately no such statement or any statement of the parties in respect of compromise was recorded. After the above said two lines diary sheet, followed the joint statement of the parties and their learned counsel reproduced hereinabove in extenso inclusive of the joint statement, which could not possibly be segregated, as the statements of the parties or the terms in which each of the parties gave/expressed their consent. Moreover; the said order sheet shows that statement of the parties was recorded on solemn affirmation and the learned counsel without oath. This two lines joint statement of the parties and their learned counsel cannot in anyway; in order to ascertain as to which part of the statement was made on `solemn affirmation' and the one made by the learned counsel without oath. Below it, on the left side there appears the signature of the learned Presiding Officer of the Court and on the right side of the order sheet, the words `R.A.C.' below which followed the signature of the respondent/plaintiff and in front of it there appears to be the thumb mark of the defendant and; below the signature and thumb-impression of the parties, respectively, the learned counsel had inscribed their signatures.

The bare view of the above said diary sheet clearly shows that signature of the respondent, the thumb-impression of the defendant and the learned Advocates were obtained not at the concluding part of the order sheet containing joint statement mentioned above but on the order sheet space lying vacant after completion of the said portion of the diary sheet. The signature and the thumb impression of the appellant/defendant (represented by his LRs) in all fairness and probabilities should have appeared at the end of/concluding part of the statement and not after or below the words `R.A.C'. The signature of the learned Judge of the trial Court in the normal course also to have appeared at the end or in front of the said order sheet containing joint statement of the parties and the learned counsel but it did not occur so, and quite apparent from the document reproduced hereinabove.

14. The above glaring and noticeable aspects lend support to the plea of the appellants as made in the memo. of appeal that his thumb impression was obtained by the Reader of the trial Court on the pretext that he has been bound to produce evidence on the next date, who further contended in memo. of his appeal that his appointed counsel Ch. Muhammad Aslam Warriach was not present on that date before the learned trial Court but instead the Reader of the Court, as it appeared to him managed .to obtain the signature of some other advocate to act as counsel for the defendant, who never was appointed or authorized by the said defendant to act on his behalf before the learned trial Court in the case.

In order to appreciate the plea, we have with the assistance of both the learned counsel, scrutinized the record of the learned trial Court, on which power of attorney of Ch. Muhammad Aslam Warriach for the defendant is available but no other document/power is available on the original file of the case showing that another advocate in the matter was appointed or authorized to act on behalf of the defendant before the learned trial Court. Also, in the order sheet and the judgment of the even date passed in the case on the basis of purported express consent, even the names of the learned Advocates had not been mentioned inasmuch as, the learned counsel for the respondent though under instructions also could not disclose about the name of the advocate, who had appeared for the defendant before the learned trial Court on 20-12-1987 and inscribed his signature below the completed order sheet, on the basis of which the consent judgment and decree was passed on the same date by the learned trial Court.

15. It has 'specifically been noted in the impugned judgment that the appellants being the petitioners in Civil Revision before the learned Single Judge in the High Court in his memo. of appeal before the learned first Appellate Court did not question the stated consent nor objected to the same, hence; such question could not be raised for the first time in Civil Revision; is patently contrary to the record. Copy of the memo. of first appeal filed by the appellants appears at pages 37 to 39 of this paper book, which speaks otherwise. In para. 2 of memo. of the appeal, it was categorically averred that on 20-12-1987 his counsel Ch. Muhammad Aslam Warriach, advocate was not present with him in the learned trial Court and his thumb-impression was obtained by the Reader of the learned Court; who stated to him that he has been bound to produce evidence on 17-1-1988 and when on the said date he went to the Court was informed by his counsel that the suit has already been decreed in favour of the respondent on the previous date i.e. on 20-12-1987 on the basis of a fake statement. It was further contended in said paragraph of the memo. of appeal that he did not affix his thumb-impression on any compromise/consent statement, hence; in view of the above mentioned grounds of facts as contained in memo. of appeal; the learned Single Judge in the High Court was not correct in saying that the question with regard to the purported consent for the first time could not be agitated in Civil Revision. The learned Judge on the point has misread the memo. of appeal filed by the appellants before the first Appellate Court.

16. In view of the above reasons and facts apparent on the record, it is abundantly clear that no consent for passing the decree was made/given by the defendant before the learned trial Court on 20-12-1987 on any terms or as contained in the said order sheet. Consequently, the judgment and decree passed on the basis of such a fake consent is illegal and of no legal effect.

17. The question arises as to whether an appeal against a consent decree claimed to have not been made and thus invalid can be questioned by filing an appeal by an aggrieved party to the case, is a matter to be looked into and considered and as to whether against a consent decree so obtained an appeal would lie or otherwise. A consent decree would not essentially be a decree passed with the consent of the parties given or expressed at the time, the decree is passed but also includes a decree passed on the basis of an agreement/settlement/compromise recorded under Order XXIII, Rule 3, C.P.C. The provisions of Order XXIII, Rule 3 have to be read with Order XLIII, Rule (1) clause (m) which gives a right of appeal from an order recording or refusing to record an agreement, compromise or satisfaction alleged to have been made between the parties. Where a decree is passed under the provisions of Order XXIII, Rule 3, C.P.C. it should be essentially recorded as a consent decree and therefore not appealable in view of the provisions of section 96(3) being a consent decree, however; where recording of an agreement, compromise or satisfaction has been questioned for being invalid or that no such agreement, compromise or satisfaction was made or given, the same would be appealable under clause (in) of Rule (1) of Order XLIII, C.P.C. and not an appeal against a decree passed on the basis of an agreement compromise or satisfaction. In the instant case, the very basis i.e. consent expressed and recorded by the learned trial Court was questioned and thus its validity made challengeable, therefore, the same was appealable, which appeal thus, to have been treated as an appeal under the above said order and not a regular appeal filed under section 96, C.P.C. The learned Revisional Court neither attended to the grounds urged in memo. of appeal germane to the matter whereby the very consent was challenged, but also failed to take notice of the above said provisions of Order XLIII, Rule 1, by treating the same as a regular appeal against a consent decree and consequently found the same to have been hit under section 96(3), C.P.C., hence; non-suited the appellants which conclusions for the above reasons, and the consequent dismissal of revision petition could not be sustained.

18. The other contentions raised by the appellants' learned counsel, as well as; canvassed on behalf of the respondent and the case law cited on the subject by them need not be dilated upon for the foregoing reasons. Since as, above, held, the very consent purportedly given by the appellants on the basis of which the decree was passed on the same date by the learned trial Court has been found to have not been made by the appellants and his appointed counsel, therefore, the decree passed on such basis consequently could not be sustained. Thus; in view of the above discussion and reasons, the impugned judgment, the appellate judgment and decree dated 21-9-1994 including the decree passed by the learned trial Court dated 20-12-1987 are set aside.

19. The result is that, this appeal is allowed, leaving the parties to bear their own costs.

M.H./F-30/S Appeal allowed.