MUMTAZ DANISH Versus AKHTAR BIBI

This civil revision arises from the judgment/ decree, dated the 30th of July, 1987, of the learned Additional District Judge, Gujranwala, whereby the respondents/ pre‑emptors appeal was accepted and the case was remanded for decision on merits.

2. It was a suit for pre‑emption brought by the respondents' predecessor Abdul Aziz against the petitioner‑vendee Mst. Mumtaz Danish to pre‑empt the land in dispute. He died on 13th of May, 1981, during pendency of the suit. The petitioner‑ vendee moved an application under Order XXIII, Rule 3, C.P.C. on the 22nd of June, 1981, for dismissal of the suit stating that he had during his lifetime agreed by virtue of a written compromise deed dated the 12th of April, 1981, to abandon it. She stated in the application that under the compromise she had been authorised to present the same before the Court for getting the suit dismissed and even to bind his legal representatives so that it was not open to them to proceed with it after his demise.

3. The application was resisted by the respondents denying if their predecessor had at all entered into any such compromise. The trial Court apparently accepting the contention of the respondents pre‑emptors dismissed the application. In revision, however, the case was remanded by the learned District Judge for re‑deciding the same after framing an appropriate issue and recording evidence of the parties. As a result, the trial Court accepted the application, meaning thereby that upholding the compromise, it dismissed the suit on the 6th of March, 1986. There was an appeal against the decree which was disposed of by the impugned order. The lower appellate Court held in a detailed appraisal of evidence that the compromise was false. It reversed the finding of the trial Court on the point and remanded the case back to it for disposal thereof on merits. Aggrieved by the said order, the vendee Mst. Mumtaz Danish has preferred the present revision petition.

4. Raja Muhammad Yaqub Khan, Advocate for the petitioner canvassed at the outset that once the trial Court came to the finding in its judgment, dated the 6th of March, 1986, that the deceased pre‑emptor had entered into the compromise agreeing to abandon the suit, the decision was no more appealable under section 96(3), C.P.C. He emphasized that to all intents and purposes it was a compromise decree against which no appeal lay. He sought support for this view from Gurcharan Singh, minor son and representative of Harnam Prasad, through Mangal Singh v. Gurdev Singh and others A I R 1922 Lah. 309 (D. B.) and Mumtaz Ali v. Haji Muhammad Ramzan 1980 C L C 331. He argued that even if this objection was not taken before the lower appellate Court, it could be urged in revision petition, for, it is based upon total absence of jurisdiction with it.

5. On the other hand, Mr. Iqbal Haider Zaidi, Advocate maintained that since it was not a case of an undisputed compromise, the Court had to determine its existence on evidence and that any decision thereabout was essentially of the nature of either recording or refusing to record the same as contemplated by the provisions of Order XLIII, Rule 1(m), C.P.C., and hence appealable. He cited Ghulam Hussain and others v. Khan Muhammad and others P L D 1954 Lah. 655 (659) (D.B.) and Lal v. Siddiq and others P L D 1961 (W.P.) Lah. 823 (D.B.) in which, according to his submission, an appeal against the limited question whether the parties had entered into a compromise or not was held permissible. Referring to the conduct of the parties, he contended that the alleged compromise was not undisputed inasmuch as the respondents had right at the earliest assailed its existence, and that it was a case where the trial Court had to settle this point affirmatively or negatively. He urged that though the Gurcharan Singh's case helped the petitioner in holding that the decrees based upon parties' consent were not appealable, yet the rule laid down in the Ghulam Hussain and others' case being equally by a Division Bench more aptly applied to the present case, in that it enunciated that an appeal lay against an order recording the compromise and that omission to write a separate order to record compromise could not deprive a party of its right as provided under Order XLIII, Rule 1(m), C.P.C. Counsel maintained that this authority being of later origin will have to be preferred to the Gurcharan Singh's case and that in its presence, the rule laid down by the learned Single Judge in the Mumtaz Ali's case cannot be followed.

6. It is an accepted proposition that under section 96(3), C.P.C. no appeal lies against what is usually called a consent decree. Such consent may take the shape of adjustment through an agreement, compromise or satisfaction of the plaintiff as envisaged by Rule 3 of Order XXIII, C.P.C. Evidently it implies consensus of parties but a case may be different in nature where such a consensus is disputed or questioned. There is no provision in the C.P.C. barring a party to prove such a consent when it is controverted and the Legislature in its wisdom does not seem to have made any such finding final. While resolving such a controversy, the Court may either come to an affirmative or negative finding, namely, may either record the compromise or refuse to record the same. In either case the order will be appealable as provided in Rule 1(m) of Order XLIII, C.P.C. The case in hand seems to squarely attract this rule inasmuch as the trial Court had given a finding that the parties had adjusted the suit. Although there was separate order, yet the decree itself as enunciated in the Ghulam Hussain and others' case was appealable. The earlier decision in the Gurcharan Singh's case was rightly claimed to be no more efficacious in face of the later decision referred to above. Even the dictum of the Mumtaz Ali's case being by a Single Judge will have no place.

7. Learned counsel for the petitioner argued that other grounds mentioned by him in the memo. of revision might also be considered. He challenged the findings of the lower appellate Court on misreading of evidence. Among other things, the lower appellate Court took a serious notice of the fact that the parties after having concluded the agreement D.1 on the 12th of April, 1981, did not move the Court that very day to finally dispose of the suit in accordance therewith, nor did they refer to it on the next date of hearing viz. the 20th of June, 1981, and instead set it up still a couple of days later, that is on the 22nd of June, 1981. Moreover, the scribe who incidentally was an Advocate did not produce his register though he claimed to have maintained one, nor did it bear any serial number of entry in such a register. These omission were estimated by the learned Additional District Judge to be quite significant having enough justification to support that it was something cooked up. Now to say in revision that this conclusion was unsustainable on the pretext of misreading of evidence was obviously something erroneous. There is no misreading, in that failure to produce the register by the scribe, failure to record any serial number of its entry on the agreement D.1, failure to produce it on the 12th of April, 1981, itself in the Court much against a provision contained therein, failure to produce it in the Court on the immediately succeeding date of hearing were circumstances undeniably available on the record. Those were not wrongly assumed. It was entirely for the lower appellate Court to consider their ? probative force and if it came to the conclusion that those sufficed to doubt the veracity of the document, it cannot be altered in the exercise of revisional powers by the High Court. In short the inference was neither arbitrary nor wanton. Instead it was based upon the record and, therefore, the rule laid down in Shahzada~ Muhammad Umar Beg v. Sultan Mahmood Khan and another P L D 1970 SC 139 and Kanwal Nain and 3 others v. Fateh Khan and others P L D 1983 SC 53 will save it.

8. There is no force in the revision petition and the same is dismissed leaving the parties to bear their own costs.

H . B . T . / M‑716/ I ?????????????????????????????????????????????????????????????????????????? Revision dismissed