SARDAR KHAN Versus TARIQ SHAHNAZ

During the pendency of this appeal, respondent moved this C . M . under Order 23, Rule 3 read with section 151, C . P. C . alleging therein that the parties had compromised their disputes according to which the counter‑suit filed by respondents 1 to 3 which was pending before Senior Civil Judge was to be withdrawn by them and the present appellant agreed to withdraw this appeal. It is also stated in the application that this agreement has been acted upon inasmuch as respondents 1 to 3 have withdrawn their suit which is evidenced by Annexure 'B' which is certified copy of order of learned Senior Civil Judge, D.G. Khan, according to which the suit filed by respondents 1 to 3 against the appellant as one of the defendants was withdrawn and his presence has been recorded therein. Annexure 'A' is the compromise which is duly thumb‑marked by the appellant. It has also been signed by two witnesses. The appellant contested this application by filing a reply in which it was stated that the said suit was withdrawn by respondents 1 to 3 in lieu of payment of an amount of Rs.1,850 which was settled in Punchayat and not in lieu of withdrawal of this appeal by the appellant. It has also been averred that the statement before Senior Civil Judge, Dera Ghazi Khan on behalf of appellant was made by the counsel of the appellant which was not explained to the appellant though the appellant put his thumb impression under the impression that it was necessary for the withdrawal of the suit. He has also raised the plea that the respondents 1 to 3 did not perform their part of the agreement by withdrawing their suit lawfully. According to the appellant since the respondents 1 to 3 were minors therefore permission was to be obtained under Order 32, Rule 7, C.P.C. from the Court to withdraw the suit on behalf of minors.

2. After going through the documents placed on record and hearing the learned counsel for the parties, I am convinced that the parties compromised the matter and the dispute between themselves by a lawful ‑agreement. The presence of the appellant has been recorded in the order dated 8‑7‑1979 passed by learned Senior Civil Judge, D . G . Khan, in which statement of the appellant was also recorded in which he admitted that the parties had compromised according to which it was agreed that Sardar Khan i.e. present appellant shall also withdraw his appeal in the High Court which is titled Sardar Khan v. Tariq Shahzad, etc. (sic). There is no ambiguity in the saia statement wnicii nas peen admittedly thumb‑marked by Sardar Khan. The allegations of Sardar Khan that he was not explained the said statement and that he thumb‑marked the same as it was told to him that it was necessary for the withdrawal of the suit has no substance. The proceedings recorded by a Court of law have presumption of correctness and shall be deemed to have been taken in the manner as the proceedings themselves show to have been taken. There is no material placed on the record and even not an affidavit of so called member of any Punchayat as alleged by appellant that the suit was withdrawn on the payment of Rs.1,850. Respondents 1 to 3 having withdrawn their suit therefore they performed the part of the agreement. The requirements of obtaining permission from the Court under Order 32, Rule 7, C.P.C. shall be deemed to have been impliedly complied with, from the order of the Court allowing the withdrawal of the suit. Even otherwise after going through the file of this case, I am of the view, that it was in the best interest of respondents 1 to 3 to compromise the matter and to get rid of protracted litigation which if allowed to remain pending would have been against their interest. This is apart from the fact that the objection as based on alleged non‑compliance of the provisions of Order 32, Rule 7, C.P.C. cannot be raised by the appellant, since respondents 1 to 3 have withdrawn their suit and the appellant has not been adversely affected rather has gained, as the suit against him stood dismissed. Learned counsel for the appellant lastly argued that in the order dated 9‑7‑1979 of the learned Senior Civil Judge, D.G. Khan the appellant has been shown as one of the plaintiffs though he was defendant No.4. This mistake appears to be bona fide and does not affect the legality or otherwise the merits of the compromise. Since the parties have settled the matter through lawful compromise to which the appellant is bound to withdraw this appeal, the respondents 1 to 3 having already performed their part of the agreement by withdrawing their suit against the appellant. This application is accepted. This appeal filed by the appellant is hereby dismissed as withdrawn. The parties are left to bear their own costs.

H . B . T . /S‑192/ L Appeal dismissed as withdrawn.