MUHAMMAD SHARIF Versus ABDUL RASHEED

This first appeal from order is directed against judgment dated 6‑11‑1986 delivered by the learned Additional District Judge, Sialkot.

2. The facts necessary for the purposes of this appeal briefly stated are that the respondent instituted a suit against the appellants for possession of land measuring 47 kanals and 19 marlas situate in village Dehlrera, Tehsil Shakargarh, District Sialkot as detailed in the plaint through pre‑emption of the sale thereof made' by Nizam Din and Chiragh Din sons of Deena in favour of appellants Muhammad Sharif and others through a registered sale deed dated 29‑12‑1980. The superior right of pre‑emption was claimed by the respondent pre‑emptor on the basis of his being son of one of the vendors, namely Chiragh Din and nephew of the other vendor Nizam Din. During the proceedings in the suit the appellants made an application under Order XXIII, Rule 3, C.P.C. before the trial Court which was accompanied by an affidavit of the respondent deposing that he had received a sum of Rs.15,000 from the appellants and that he had entered into a compromise with them where-under he was not desirous of prosecuting the suit which may be dismissed. This application appears to have been resisted by the respondent when on 19‑10‑1985 the parties and their counsel made a statement before the trial Court that in case Abdul Rashid respondent takes oath on Holy Quran and states that he had not received Rs.15,000 then the application of appellants under Order XXIII, Rule 3, C.P.C. may be dismissed to the extent of the asserted payment of the amount in question. Abdul Rashid respondent on the same date made a statement on the Holy Quran admitting the entering into of a compromise with the appellants, but denied having received payment within the agreed time and even thereafter. The learned trial Court by its order dated 19‑10‑1985 held that Rs.15,000. had not been paid to the respondent' and, therefore, the appellants‑defendants were directed to deposit Rs.15,000 in Court within one month which amount may be received by the respondent failing which the application under Order XXIII, Rule 3, C . P . C . shall be deemed to have been dismissed and the proceedings in the suit will be taken up afresh and further that in case the amount was deposited within one month the suit shall stand dismissed as per agreement between the parties.

3. Feeling dissatisfied with this order of the trial Court the respondent went up in appeal before the learned Additional District Judge, Sialkot, who by his judgment dated 16‑11‑1986 accepted the appeal and setting aside the impugned decree of the trial Court dated 19‑10‑1985 remanded the case to it for deciding it afresh in accordance with law. Hence the present first appeal from order by the appellants‑defendants.

4. The learned counsel for the appellants contended: First, that there was a lawful agreement between the parties which was submitted in the Court and therefore, the trial Court being duty bound had rightly recorded the compromise and passed a decree in accordance therewith. Appeal against the said decree was not maintainable and the lower Appellate Court has, therefore, erred in entertaining the appeal and accepting the same;

Secondly, that the agreement to the extent of non‑payment of amount only stood rescinded and, therefore the Court was justified in keeping the other part intact by directing the deposit of the amount in Court in order to give effect to the compromise; and

Lastly, (the learned counsel half‑heartedly argued) that the resolved controversy between the parties should not be allowed to be reopened especially when the judgment of the Supreme Court of Pakistan (Shariat Appellate Bench) in Government of NWFP v. Said Kamal Shah reported as PLD 1986 SC 360 has taken away the right of pre‑emption of the respondent.

5. On the other hand, the learned counsel for the respondent only contended that the compromise between the parties in view of non‑payment of the consideration therefore stood rescinded in toto and the question of its enforcement could not arise.

6. Having given consideration to the controversy I am of the view that the contentions raised on behalf of the appellants have no force. It is well‑settled that the Court before it gives effect to a compromise by recording the same under Order XXIII, Rule 3, C.P.C. has to satisfy itself and ascertain it there is a finally concluded lawful agreement in existence between the parties. It being the established position on record that the consideration for the alleged' compromise between the parties had not been paid to the respondent, there was no finally concluded agreement subsisting between the parties which could be given effect to by the Court by recording the same. The passing of a decree by the trial Court on the basis of a compromise which stood annulled on account of non‑payment of the consideration there-under was, therefore, manifestly without jurisdiction.

7. The trial Court as has rightly been held by the lower appellate; Court also acted beyond its jurisdiction in directing the deposit of the amount in Court by fixing a time therefore inasmuch as it amounted to adding to the terms and conditions of the agreement by the Courtly itself, which the Court obviously was not competent to do. This could only be resorted to if the respondent had agreed to extend the time for payment of the amount in question. No such statement having) been made by the respondent the trial Court acted illegally and in excess of its jurisdiction in giving a direction for deposit of the) amount in Court and in the event of the amount having been deposited to dismiss the suit on the basis of the rescinded compromise.

8. In view of the foregoing discussion the first two contentions vraised on behalf of the appellants fail.

9. As regards the last contention of the learned counsel for the appellants I suffice by observing that in view of the Full Bench judgment of this Court in Abdul Ghaffar Khan and others v. Saghir Ahmad Aslam and others reported as PLD 1987 Lah. 358 the contention that the respondent's right of pre‑emption stands abridged is not tenable.

10. Resultantly this appeal fails and is accordingly dismissed. The parties will, however, bear their own costs.

A.A./M‑429/L Appeal dismissed.