HAMIDA BEGUM Versus MUHAMMAD SALEEM

This judgment shall dispose of Civil Revisions Nos. 959, 960 and 11.50. of 1987. It shall, however, remain on the file of Civil Revision .No. 960 of 1987.

2. The facts forming the background of this 'case in brief are that the petitioner allegedly agreed to sell the land in dispute to Muhammad Saleem respondent which was allotted to her under the Settlement Laws. At one stage its allotment in her name was cancelled but it is alleged that it was subsequently restored to her. Respondent Muhammad Saleem filed a suit for specific performance of aforementioned agreement of sale of this land. The suit was decided ex parte by judgment dated 17‑12‑1975. On 19‑12‑1975 the petitioner made an application under Order IX, Rule 13, C.P.C. for setting aside the said ex parte decree. This application was contested. However, this application was dismissed in default on 5‑11‑1981. The petitioner made an application for restoration of the said application of setting aside ex parte decree which was dismissed on merits on 21‑3‑1982. The petitioner filed ai appeal against this order before the learned lower appellate Court.

3. The petitioner had also filed a suit for cancellation of the said agreement of sale, the specific performance of which was being sought by the respondent Muhammad Saleem. The suit was dismissed for non‑prosecution on 5‑11‑1981. The petitioner moved an application for restoration of the said suit which was contested but dismissed on merits by order dated 21‑3‑1982. This order was also challenged through a separate appeal by the petitioner before the same learned lower appellate Court which was being taken up alongwith the aforementioned appeal filed by her arising from the suit for specific performance of contract.

4. Nazir Ahmad etc. petitioners in Civil Revision No. 1150 of 1987 claimed to have purchased the land in dispute from the petitioner in this revision petition through registered sale‑deed in the year 1976. Muhammad Saleem respondent in whose favour ex parte decree for specific performance of contract was passed filed a suit for cancellation of the said sale‑deed in favour of Nazir Ahmad etc. which is still pending adjudication.

5. In the aforementioned two appeals filed by the petitioner before the learned lower appellate Court two applications were made on 12‑10‑1982 for recording the compromise which was attached with the applications on which an order was passed in one of the appeals for putting up the file on 13‑10‑1982. The records of both the appeals were put up before the learned Court seized of the matter and after recording the statement of the petitioner and her counsel Mr. Muhammad Sadiq Bhatti, Advocate, the appeals were dismissed having been withdrawn. Two applications were subsequently filed by the petitioner on 21‑12‑1982 under section 12(2), C.P.C. for setting aside the proceedings dated 13‑10‑1982 alleging that the alleged compromise was a fraudulent transaction and she never entered into any such agreement for withdrawal of the appeals. Another application was made by Nazir Ahmad etc. under the same provisions of C.P.C. alleging that they being subsequent transferees for value of the `land, therefore, the withdrawal of the appeals through the said compromise was a fraud played upon them by the petitioner. The applications were contested by the respondent Muhammad Saleem who filed written replies to the said applications. The learned District Judge, Kasur, framed the following issues:‑

(1) Is the petition not maintainable in law?

(2) Is the petition mala fide?

(3) Whether the order dated 13‑10‑1982 is void on the grounds mentioned in the petition?

(4) Relief.

In support of her case the petitioner examined Fazal Muhammad son of Muhammad Hassan as P.W. 1, Muhammad Ramzan son of Fazal Muhammad and she examined herself as P.W.

3. Apart from this oral evidence the petitioner also produced documents Exh. P.1 to Exh. P.36. As against this, respondent Muhammad Saleem examined Hasan Din Ansari, Advocate, Kasur as R.W.1, Muhammad Sadiq Bhatti,. Advocate, as R.W. 2, Muhammad Sarwar Officer Grade‑III National Bank of Pakistan Kasur as R.W. 3, Shafqat Mahmood, Senior Assistants National Bank of Pakistan as R.W. 4 and Muhammad Saleem‑examined himself as R.W.

5. The respondent also produced documentary evidence such as 'Vakalatnama' in favour of Mr. Muhammad Sadiq Bhatti Advocate, allegedly executed by the petitioner as Exh: R;1.:, application moved before the Court for recording compromise as Exh. R.2 on which the alleged signatures of Mst. Hamida‑,Begum the. petitioner were exhibited as Exh. R.2/1; whereas the alleged signatures of Mr. Muhammad Sadiq Bhatti, Advocate as Exh. R. ,'2/2. Alleged signatures of Mst. Hamida Begum the petitioner on 'Vakalatnama` EXh.R.l were exhibited as Exh.R. 1/17 whereas signatures of Mr Muhammad Sadiq Bhatti, Advocate, on the said 'Vakalaknama as: EXh.R.l/2. The alleged signatures of the petitioner under statement dated 13‑10‑1982 for the withdrawal of the appeal are Exh.R.3; whereas: alleged signatures of her counsel namely Mr. Muhammad Sadiq Bhatti are Exh.R.4. After examining the evidence brought on the record, both oral and documentary the learned District Judge, Kasur, dismissed both the applications moved by the petitioner as also the third one moved by Nazir Ahmad etc. i.e. the subsequent purchasers by impugned judgment dated 8‑4‑1987.

6. This Revision Petition No. 960/87 has arisen from the proceedings of the appeal, filed by the petitioner arising from the suit for specific performance instituted by Muhammad Saleem the respondent which was decreed ex parte; whereas Civil Revision No: 959 of 1987 has arisen from appeal arising from the suit filed by .the petitioner herself for cancellation of agreement of sale and Civil Revision No. 1150 of 1987 has been filed by Nazir Ahmad etc. the subsequent purchasers feeling aggrieved from the impugned order of dismissal of their applications moved by them under section 12(2) of the C . P. C .

7. I have heard the learned counsel for the parties. Learned counsel for the petitioner mainly stressed that the petitioner being illiterate Pardanasheen lady, therefore, once she had denied having entered into any compromise and executed any agreement in favour of the respondent for withdrawal of appeal the onus of proof was entirely on the respondent to have proved beyond all shadow of doubt by substantial evidence that the petitioner did execute compromise deed after having fully made known to her the contents of the same and she having been made aware of the legal consequences of the said agreement that it was to result in the maintenance of ex parte decree for specific performance of agreement of sale, the execution of which was previously denied by her. According to the learned counsel this having not been proved, the learned District Judge, Kasur, was bound to accept the applications and set aside the proceedings dated 13‑10‑1982 and 'was duty bound to dispose of the appeals on merits. In order to establish that there was no genuine compromise, he argued that the compromise‑deed allegedly executed bears the date as 10‑10‑1982 on which court‑fee affixed also bears the same date; whereas the same was moved on 12‑10‑1982 before the Court by Mr. Muhammad Sadiq Bhatti who was allegedly engaged as the counsel for moving the said compromise who stated that he did not know the petitioner before 12‑10‑1982. He also maintained that compromise ,deed also .bears the signatures of two witnesses whose names are not clearly written and none of them was produced in evidence by the respondent. He also argued that on 12‑10‑1982 when the applications were moved for recording compromise an order was passed only in one of the appeals bearing No. 123 of 1982.arising from the suit filed by the petitioner for cancellation of agreement of sale for putting up the file on the next date whereas the file of the other connected appeal arising from the suit for specific performance bearing No. 122/82 was also put up without there being any separate order and in the said appeal also the proceedings were taken on 13‑10‑1982 which were illegal as the said record was never ordered to be put up. With reference to statement of Mr. Muhammad Sadiq Bhatti, Advocate, learned counsel for the petitioner laid a great deal of stress that the same was inconsistent inasmuch as he stated in the earlier part of his statement that there was only one Vakalatnama for moving the said compromise in both the appeals ' and also that there was only one application whereas subsequently when he was cross examined with reference to the original record he admitted that there were two separate Vakalatnamas in both the appeals in his favour and in both the appeals two separate applications were moved. He vehemently argued that from the statement of Cdr. Muhammad Sadiq Bhatti, Advocate, as also Mr. Hassan Din Ansari, Advocate, produced by the respondent it is clear that they did not know the petitioner and she was allegedly introduced to them by one Mr. Abdul Qayyum Pahat, Advocate, of Lahore and this Mr. Abdul Qayyum Pahat, Advocate, was not produced in order to establish the identity of the petitioner who allegedly engaged him to get the compromise recorded and appeals withdrawn. Learned counsel for the petitioner relied upon chain of authorities such as Tamijur Rahman v. MD. Altafur Rahman and others (P L D 1970 Dacca 604), Mst. Hukam Devi v. Saliq Ram and another (A I R 1935 Lahore 184), Sayed Zawar Hussain Shah and others v. Mian Saleh Mohammad Shah (A I R 1940 Lah. 515), Mst. Bishan Devi and others v. Jagat Singh and others (A I R 1937 Lah. 353), Muhammad Hussain v. Secretary of State and others (AIR 1939 Lah. 330), Peoples Bank of Northern India Ltd. v. Mian Ghulam Jan and another (A I R 1938 PC 276), Mst. Farid‑un‑Nisa v. Munshi Mukhtar Ahmad and another (A I R 1925 P C 204), Imam Ali Shah and others v. Ahmad Shah and others (P L D 1977 Karachi 688), Allah Dino v. Mst. Sabira and 6 others (P L D 1983 Karachi 492), Mst. Nando v. Mst. Dulara (A I R 1933 Oudh 394 and Shamshad Ali Shah and others v. Syed Hassan Shah etc. (P L D 1964 SC 143), to argue that in case of Pardanasheen lady the onus of proof has always been held to be on the party asserting execution of document by her in case of mere denial of its execution by such a lady.

8. On the other hand, learned counsel for the respondent maintained that identity card number of the petitioner was given both on the compromise deed as well as on the application moved in the Court for withdrawal of the appeals which was admittedly that of her identity card, therefore, so far as the identity of the lady was concerned it was fully established. Mr. Muhammad Sadiq Bhatti, Advocate, who appeared on behalf of the petitioner at the time of recording compromise has been produced as witness. Apart from this Mr. Hassan Din Ansari, Advocate, has also been produced in order to prove that in pursuance of the said compromise and in accordance with its terms the petitioner received from the Court of Senior Civil Judge, Kasur, the refund voucher for the withdrawal of the amount of Rs.52,024.55 which was deposited in the said Court which was duly mentioned in the compromise deed. According to the learned counsel for the respondent Muhammad Saleem, it was for the petitioner to have produced Mr. Abdul Qayyum Pahat, Advocate, who identified and introduced the petitioner to these witnesses and he being the witness of petitioner the respondent could not be expected to take risk of producing him as his witness to deprive him of his right to cross‑examine him if produced by the petitioner. The petitioner having not made any request to the Court for examination of Mr. Abdul Qayyum Pahat which conduct is sufficient to establish her mala fides and untruthfulness of her case. He also argued that according to law of pleadings the petitioner was bound to plead the specific instances and particulars of the fraud with dates and the manner in which it was allegedly played upon her and in this context there being no such particulars, therefore, the plea of fraud was not entertainable at all and no evidence could be allowed to be led. He further argued that as a matter of fact the evidence of the petitioner and in particular her own statement is inconsistent with her application moved under section 12 (2) of the C.P.C. and further that the said application also contains contradictory pleas such as in the earlier part of her application she stated that it was her husband who played fraud in collusion with Muhammad Saleem whereas in the later part she alleged that her signatures on the compromise and Vakalatnama were obtained through 'fraud, coercion and putting her under fear etc. etc.

9. Learned counsel for the petitioners in Civil Revision No. 1150 of 1987 argued that both i.e. the petitioner in this revision petition as well as Muhammad Saleem have played fraud upon the petitioners inasmuch as after having sold the land to the said petitioners, Mst. Hamida Begum colluded with Muhammad Saleem and the appeals were withdrawn in order to cause damage to the interest of the petitioners which they had acquired in the land. He also argued that the agreement in favour of Muhammad Saleem could not be given preference over the sale‑deed which is a registered document in favour of the said petitioners and further that at the time when the agreement of sale was allegedly made by Mst. Hamida Begum in favour of Muhammad Saleem the allotment of land in favour of Mst. Hamida Begum stood cancelled and she was not the owner thereof as such could not transfer the land to Muhammad Saleem, as a consequence of which the sale of the land in favour of the said petitioners made at the time when Mst. Hamida Begum had been restored the land was to take affect as against the said agreement of sale.

10. I have thoroughly and carefully examined the record of this case, the certified copies of which have been placed on the record by the parties in all the three revision petitions. The argument of the learned counsel for the petitioner that there was an order for putting up of only Appeal No. 123/82 on 13‑10‑1982, therefore, the other Appeal No. 122/82 having been put up without there being any order as such the compromise could not have been recorded in the said other Appeal is merely a technical objection which has no material bearing upon the merits of the case. Since both the appeals were being taken up together on one and the same date, therefore, even if the file of the other Appeal No. 122/82 was put up alongwith Appeal No. 123/82 and compromise was recorded in both the appeals it would not render the proceedings in the said other appeal as without jurisdiction and it will not also otherwise affect the merits of the order of recording the compromise on this score. The objection in this regard is hereby repelled. Similarly the .abjection that the compromise was shown to have been typed on 10‑i0‑1982 whereas it was produced before the Court on 12‑10‑1982 does not by itself have any material adverse affect upon the validity of the agreement. There could possibly be no legal objection if the parties got the compromise typed on a particular date and produced the same in the Court on subsequent date.

11. The next question which falls for consideration is whether the case in hand is that of Pardanasheen lady. It has been pleaded in the application under section 12(2), C.P.C. moved by the petitioner herself that she had been appearing before various Civil Courts, Martial Law Authorities, allegedly in connection with allotment of some other land at Kot Radha Kishan. It has also come on record in evidence that the petitioner was wearing 'Burka'. Keeping in view these facts and circumstances, I have no hesitation in holding that the petitioner cannot legally be held to be a Pardanasheen lady in the strict sense of the term. In my view a merely Parda observing lady is not necessarily a Pardanasheen lady. A Pardanasheen lady is a lady who does not appear in public according to her religious belief or according to the rule of custom followed by her. This view is fully supported by judgment reported as Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and another (1984 SCMR 890). Therefore, the case‑law cited by the learned counsel for the petitioner to contend that the onus of proof was entirely on the respondent Muhammad Saleem to establish that the petitioner executed compromise with her own free will after fully understanding its meanings in not applicable to the facts and circumstances of this case. Any how nothing turns on this, because for the reasons to follow even if the petitioner is assumed to be a 'Pardanasheen' illiterate woman, the onus has been successfully discharged by the respondent through evidence.

12. The next question which is in fact the real question in controversy is whether the compromise in question was vitiated by fraud and as such the order dated 13‑10‑1982 passed by the learned lower appellate Court on the basis of the said compromise for disposal of appeal as having been withdrawn was liable to be set aside. The application moved by the petitioner was under section 12(2), C.P.C. under which the validity of a judgment and decree or order of a Court could be challenged on the plea of fraud, misrepresentation or want of jurisdiction. Since the petitioner relied upon the plea of misrepresentation and fraud in order to avoid the order dated 13‑10‑1982, therefore, according to law of pleadings and the principles as contained in Order VI, Rule 4, C.P.C. it was initially the burden of the petitioner to give particulars with dates and items if necessary of such fraud and misrepresentation in the application itself. No doubt in the application moved by the petitioner under section 12(2), C.P.C. it was pleaded specifically that the husband of the petitioner namely Aziz Ahmad had been obtaining signatures of the petitioner on various blank and typed papers and she was given the understanding by him that the same were required by him to be produced before the Martial Law Authorities, Civil and Criminal Courts in connection with allotment of some other land in the name of the petitioner at Kot Radha Kishan and on the same understanding she was made to appear before various Courts and she was told to admit her signatures after appearing before the said Courts. She went on to plead that after some time her brother informed her that the husband of the petitioner in conspiracy with Muhammad Saleem the respondent had played fraud upon the petitioner and had got signed from her some compromise deed and after producing the petitioner before the Court the appeals of the petitioner had been withdrawn. Keeping in view these allegations, the same certainly satisfy the requirement of law, as contained in Order VI, Rule 4, C.P.C. about the requirement of particulars of fraud to be given in the pleadings. Had the petitioner pursued the case as pleaded by her as noticed above the position might have been different. Unfortunately when she appeared as per own witness she did not in evidence depose anything about alleged fraud having been played upon her by her husband Aziz Ahmad in conspiracy with the respondent. She deposed that she had been appearing before various Courts and Martial Law Authorities in connection with allotment of land at Kot Radha Kishan and simply denied having entered into any compromise regarding withdrawal of appeals with Muhammad Saleem and it was on the information given to her by her brother that she came to know that Muhammad Saleem respondent through fraud had got the appeals withdrawn due to which her husband also felt aggrieved and died on account of shock. Learned counsel for the petitioner when questioned as to how the case of fraud on the part of husband of the petitioner in collusion with Muhammad Saleem as pleaded has been proved through evidence, he frankly conceded that it was not so done because such allegations were made on the basis of the opinion formed by her brother who drew his own conclusions from the circumstances that the husband of the petitioner might have used the papers got signed by him from the petitioner in connection with allotment of land at Kot Radha Kishan, in collusion with the respondent which information was ultimately, when enquired was not found to be correct. The husband of the petitioner was himself feeling aggrieved due to which he also died. Then there remains allegations of fraud in the later part of the application contained in Paragraphs 11 and 12 thereof in which the petitioner alleged that she neither engaged any counsel by the name of Mr. M. Sadiq Bhatti nor executed any Vakalatnama in his favour or made any application for recording compromise and for the withdrawal of appeals or any compromise itself and her signatures on these were obtained through fraud, misrepresentation, against law, under undue influence and putting her under fear and without her knowledge. The petitioner neither withdrew her appeals nor the suit. These allegations of fraud if are considered to be a separate set of circumstances independent from the previous allegations noted above, then it does not satisfy the requirement of provision of Order VI, Rule 4, C.P.C. as no particulars have been given as to how and when, in what circumstances the petitioner was made to sign these documents by Muhammad Saleem as alleged by her in these paragraphs. The facts pleaded in the application under section 12(2), C.P.C. establish that the signatures on the compromise as well as the applications made before the Court for recording the compromise and withdrawal of appeals as also the Vakalatnama in favour of Mr. td. Sadiq Bhatti, Advocate, were indirectly admitted by the petitioner. What the petitioner was earlier trying to show was that these documents were got signed from her by her husband giving her understanding that they were to be used in connection with allotment of other land in her name at Kot Radha Kishan and were as a matter of fact used by preparing a compromise of the withdrawal of appeals. But for, any person like husband of the petitioner, having influence over the petitioner, Muhammad Saleem alone could not possibly have any access to the petitioner or could not have made the petitioner to sign these documents or blank papers, the petitioner being in litigation with him for the last many years. The plea of fraud taken in the application as against her husband and his collusion with the respondent by the petitioner having not been proved rather conceded by the learned counsel for the petitioner to have been found to be not correct, there is neither any evidence nor pleading as to how then Muhammad Saleem obtained the signatures of the petitioner. Apart from this while alleging that the petitioner appeared before different Civil Courts and Martial Law Authorities on the understanding that these appearances were in connection with allotment of land in her name at Kot Radha Kishan she also indirectly admitted to have appeared before the Court and admitted her signatures on these documents. There was no occasion for appearance before the Civil Courts in connection with allotment of land under the settlement laws. As a matter of fact the petitioner attempted to make out a case to wriggle out of the legal consequences of her signatures on the relevant documents and the compromise but could not succeed, in establishing the case of fraud through evidence. In the cross‑examination when questioned she denied having appeared before any Court. So much so neither in the application under section 12 (2) nor in her statement before the Court when she appeared as her own witness she categorically denied her signatures on the relevant documents i.e. compromise deed, application for withdrawal of appeals as also signatures on her statement recorded by the Court. When the learned counsel for the respondent tried to cross‑examine her directly in respect of her signatures after confronting her signatures on these documents, she stated that she was not in a position to recognise her signatures. As against that the respondent has produced Mr. Hassan Din Ansari, Advocate as RW.l. This witness identified the petitioner at the time of issuance of refund voucher of an amount of Rs.52,024.55 deposited by the respondent in the Court of Senior Civil Judge, Kasur in pursuance to the compromise. This witness categorically stated that the petitioner signed and thumb marked the relevant register in acknowledgment of the receipt of the refund voucher on which number of her Identity Card was also written. This witness deposed that the petitioner was introduced to him by Mr. Abdul Qayyum Pahat, Advocate, who was not a practising lawyer and when at the time of putting the signatures and thumb‑impressions on the said register the petitioner lifted the veil of her Burka from her face he compared the face of the lady with the Identity Card and found that she was the same lady whose Identity Card was produced. This witness has also deposed that he saw the Identity Card of the petitioner which was produced. The said register containing the signatures and thumb impressions of the petitioner was summoned by the Court and the relevant entries regarding the said signatures as also the thumb impressions in cross‑examination were put to the petitioner in cross‑examination and she was asked to either admit or deny the same. The petitioner answered that her husband had been obtaining her signatures and thumb‑impressions at different times in connection with allotment of land in her name at Kot Radha Kishan but did not deny that the said signatures and thumb‑impressions were not hers. The Court also noted in the proceedings that against the said signatures and thumb‑impressions of the petitioner on the relevant register her Identity Card No.280‑29‑107477 was mentioned. This number is admittedly of the petitioner's Identity Card but the learned counsel for the petitioner argued that this was the number of her original Identity Card which was misplaced and the petitioner was issued duplicate Identity Card which was shown to the learned lower appellate Court and the number of duplicate Identity Card should have been written. I am afraid the argument is wholly misconceived. It is not denied by the learned counsel for the petitioner that even on the duplicate Identity Card issued, the number of original Identity Card is also given. The possibility of recovery of original Identity Card by the petitioner after it was misplaced as alleged could not be ruled out. Identity Card is such a document which could be with the person to whom it belonged and availability of its number with the respondent was not easily possible unless the same was produced at the relevant time. Learned counsel for the petitioner on this aspect vaguely argued that Muhammad Saleem the respondent might have got number of Identity Card of the petitioner from some other documents where it might have been written by the petitioner because the petitioner was in litigation with the respondent for the last so many years. The reason advanced is fallacious as regarding this there is nothing brought on record in evidence. When the petitioner made the application under section 12(2), C.P.C. she had come to know that her Identity Card number was mentioned in compromise deed under her signatures as well as on the application moved before the Court and she could take a definite stand in this connection which she failed to do. The respondent has also examined Mr. M. Sadiq Bhatti, Advocate, who appeared as counsel of the petitioner at the time of recording compromise between the parties in the Court. This witness also deposed that the petitioner was introduced to him by Mr. Abdul Qayyum Pahat, Advocate, and it is in the evidence of Muhammad Saleem respondent that this compromise was settled when Mst. Hamida Begum the petitioner was staying in the house of Mr. Abdul Qayyum Pahat, Advocate. On the identification of Mr. Abdul Qayyum Pahat, Advocate, Mr. M. Sadiq Bhatti, Advocate, appeared on her behalf. Since both these Advocates are directly connected with the matter of compromise, its recording by the Court and withdrawal of appeal and the amount by Mst. Hamida Begum the petitioner, deposited in pursuance of the said compromise, therefore, the onus if there was any on the respondent stood fully discharged. These two Advocates being the direct witnesses, therefore, could be the only evidence which the respondent was expected to produce. Learned counsel for the petitioner faced with this situation argued that since these Advocates did not know the petitioner personally, therefore, Mr. Abdul Qayyum Pahat, Advocate, having allegedly identified the petitioner before these Advocates should have been produced.

13. I am afraid the contention has no force. Every Advocate is not always required to know each and every client who is to engage him and an Advocate who is intended to be engaged could satisfy himself about the identity of the person through some other person known to him and in this case Mr. Abdul Qayyum Pahat, Advocate, having identified the petitioner at the time of engaging Mr. M. Sadiq Bhatti, Advocate, therefore, the latter was justified in not entertaining any doubt that the woman engaging him was the appellant. In my view in this situation the respondent was not required to produce Mr. Abdul Qayyum Pahat, Advocate, who according to him was the person from the side of the petitioner, so as to deprive himself of his valuable right to cross‑examine him if produced by the petitioner. The petitioner did not make attempt to request the Court to examine Mr. Abdul Qayyum Pahat, Advocate, though she could make such a request. Even during the course of argument before me no such prayer was made. Learned counsel for the petitioner then argued that Mr. M. Ssdiq Bhatti, Advocate, in the earlier part of his statement in Court stated that there was only one Vakalatnama whereas when brought to his notice it was found that there were two vakalatnamas in both the appeals separately executed in his favour as also the two applications for withdrawal of appeals, therefore, his statement could not be given any credence. I am afraid this part of statement of Mr. M.Sadiq Bhatti, Advocate, cannot be read in isolation. Ills statement was recorded on 17‑4‑1986 after a lapse of four years, therefore, an Advocate, who appeared once in a case could not be expected to remember such minute details. Since there were two appeals, therefore, two applications were to be made as in the compromise deed it was settled that both the appeals were to be withdrawn.

14. Before proceeding further I would like to dispose of certain other arguments advanced on behalf of the learned counsel for the petitioner. He argued that the original counsel who was prosecuting the appeal on behalf of the petitioner was different Advocate who was not asked to withdraw the appeals and over and above him Mr. M. Sadiq Bhatti, Advocate was engaged which makes the proceedings doubtful. The argument has no force. It is in the evidence of Mr .M. Sadiq Bhatti, Advocate, that he suggested that same Advocate should be asked to get the compromise recorded, but he was informed that the petitioner had no contact with the said Advocate for a long time. This statement fully establishes the bona fides of Mr. M. Sadiq Bhatti, Advocate, and this part of his statement has not been successfully challenged in the cross‑examination. He then argued that the two appeals were already fixed on a certain date and the filing of applications with compromise earlier to the said date makes the very compromise and its genuineness a doubtful affair. This argument has also no substance inasmuch as when the parties had entered into compromise and settled the matter they could request the Court to take up the case earlier and pass an order accordingly. It is the usual practice that the parties compromising the dispute ask the Court to pass the order without waiting for the date on which the case is already fixed. Learned counsel then came out with the argument that Mr. Hassan Din Ansari, Advocate, RW. 1 admittedly to have written on the application for withdrawal of amount from the Court of Senior Civil Judge that he knew the lady personally whereas in fact he did not know the lady personally. Mr. Hassan Din Ansari, Advocate, has made it clear in his statement that he used those words because it was the requirement of the Court without which amount could not be allowed to be withdrawn by the petitioner. This matter has no significance as I have held that this witness satisfied himself about the identity of the petitioner while comparing her face with the Identity Card produced by her when she signed the relevant register and thumb‑marked it. Mr. Hassan Din Ansari, Advocate, in this manner became the direct witness about the identity of the petitioner. It was lastly argued that Mr. Hassan Din Ansari, Advocate, could not act on behalf of the petitioner regarding application for withdrawal of the amount without there being any written authority given to him by the petitioner as required by Order 111, Rules 1 and 2, C.P.C. I am afraid the contention is wholly misconceived. The execution of written authority is only required where a person is to do an act which a party has to do in a Court. Mr. Hassan Din Ansari, Advocate, was not to withdraw the amount himself on behalf of the petitioner which act the petitioner herself was present to do. He as a matter of fact acted just as a witness of her identification and to witness a transaction no written authority is necessary. The objection is repelled.

15. The case can be viewed from another angle. The main question is whether the compromise deed dated 12‑10‑1982 has been duly executed by the petitioner and is a valid document. In the context of the proceedings it emerges that in pursuance of the alleged compromise the petitioner received refund voucher from the Court of Senior Civil Judge, Kasur, for an amount of Rs.52,024.55. The question whether she received the refund voucher is of crucial importance because if she did in fact receive the refund voucher, the issue is clinched against her that she was a party to the compromise with her own free will and fully understood its contents. It has been proved through evidence of Mr. Hassan Din Ansari, Advocate, as discussed above that the petitioner in fact received the refund voucher herself about whose identity the said witness personally satisfied himself by comparing her face with the Identity Card produced by the petitioner the number of which was given against the entry in the relevant register on which according to this witness the petitioner put her signatures and the thumb‑impressions in token of receipt of the said refund voucher. This was according to the witness apart from the fact that the petitioner was also identified by Mr. Abdul Qayyum Pahat, Advocate, who introduced her to the said witness. According to this witness Mr.Abdul Qayyum was not a practising lawyer. The relevant register containing the signatures and thumb‑impressions of the petitioner was summoned by the Court and the petitioner was confronted with the said signatures and the thumb‑impressions which she could not deny. The Court also allowed the respondent to tender the said register in evidence. The Court also noticed during the course of recording of evidence that Identity Card No.280‑29‑107477 was mentioned in the said register against the signatures and thumb‑impressions of the petitioner and the said number being that of Identity Card of the petitioner has ,not been denied. It is of much significance that this question is one of fact and has been found against the petitioner by the learned lower appellate Court. No grounds have been urged on her behalf to justify interference in such a finding of fact. The petitioner could, however, move the Court for comparison of her thumb‑impressions and signatures if he questioned their authenticity but she did not do it and even before me it has not been urged that such a comparison should be undertaken. As it is, I have no option but to uphold the finding that she received the refund voucher. After receiving the refund voucher it did not lie in her mouth to deny the execution of the compromise deed and withdrawal of appeals as the refund voucher was issued to her in pursuance to one of the conditions of the same compromise deed. Since I have upheld the findings of fact of the learned lower appellate Court that the refund voucher was received by the petitioner herself, therefore, I am not called upon to discuss the evidentiary value of the evidence of the witnesses produced from the bank from where the petitioner allegedly received the amount after opening the account and depositing the refund voucher there because so far as the respondent is concerned he was only required to establish that the petitioner received the refund voucher from the Court in which the amount was deposited to establish genuineness of compromise and if the case of the petitioner was that she did not receive the amount from the bank and somebody else through fraud withdrew the said amount on her refund voucher, she may seek such remedy against such person for recovery of amount and by lodging criminal proceedings. The learned lower appellate Court having not been found to have acted with material irregularity and illegality in exercise of its jurisdiction and the impugned order having been based on careful and elaborate appraisal of evidence produced by the parties which has not been established to have either been misread, misconstrued or ignored, therefore, the Revision Petitions Nos. 959 and 960 of 1987 for the foregoing reasons are without any merits which are hereby dismissed with no order as to costs.

16. Coming to Civil Revision No. 1150 of 1987 suffice it to say that the petitioners of the said revision petition could not maintain application under section 12(2), C.P.C., for the said provision of law could only be invoked if a judgment and decree of the Court is vitiated by fraud. It is only the fraud relatable to the proceedings of the Court in which the judgment and decree was passed affecting its validity adversely which can be the basis for challenging it. In this case I have recorded the finding that as a matter of fact neither the order for dismissal of appeals dated 13‑10‑1982 passed by the learned lower appellate Court nor the compromise, was the result of fraud and the appellants in those appeals were consenting party to the same, therefore, there is no question of the said judgment and decree having been vitiated by fraud. The case of the petitioners in this revision petition appears to be that they being bona fide purchasers for value without notice to the previous agreement of sale and that the petitioners alongwith Muhammad Saleem respondent colluded with each other to defraud the petitioners in order to deprive them of their legal rights arising from such sale, which facts cannot be the basis for maintaining application under section 12(2), C.P.C.I and the remedy of the petitioners, if any, lies somewhere else. Since Muhammad Saleem the respondent is stated to have filed a suit for cancellation of sale‑deed in favour of these petitioners, therefore, they will be well within their rights to defend the said suit on any plea available to them under the law. Learned counsel for the respondents argued that the said petitioners being purchasers of the land during the pendency of the proceedings, therefore, they were hit by principle of lis pendens. I am not required to adjudicate upon the merits of this contention as also the other contentions as it will be for the said Court where the suit of the respondent is pending to adjudicate upon the same in accordance with law. The Revision Petition No. 1150 of 1987 is also dismissed with no order as to costs.

A . A . / H‑86 /L Revisions dismissed.