WAPDA EMPLOYEES COOPERATIVE HOUSING SOCIETY LTD. Versus Dr. KHALID RANJHA
CH. MUHAMMAD MASOOD JAHANGIR, J.--- The subject of Civil Revision in hand was a declaratory suit filed by respondent No.1 claiming to be owner in possession of the disputed property fully detailed in the plaint, which was concurrently decreed by the two Courts below through the impugned judgments and decrees.
2. Although, at the very outset, Malik Noor Muhammad Awan, Advocate for respondent No.1 while referring judgments reported as Abid Hussain and others v. Aziz Fatima and others (PLD 1995 Supreme Court 399), Mrs. Akram Yaseen and others v. Asif Yaseen and others (2013 SCMR 1099), Government of Pakistan v. Premier Sugar Mills and others (PLD 1991 Lahore 381), Messrs Shadman Cotton Mills Ltd. through Director v. Federation of Pakistan through the Chairman Central Board of Revenue (Revenue Division), Islamabad Land another (PLD 2009 Karachi 169), Messrs Nishat Ghunian Ltd. through Chief Officer v. Province of Punjab through Secretary, Local Government and 2 others (2013 CLC 34), Khan Iftikhar Khan of Mamdot (Represented by 6 Heirs) v. Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 Supreme Court 550) and Messrs Canal Breeze Cooperative Housing Society Limited v. Agricultural and Transport Development Corporation (Pvt.) Limited (2000 SCMR 506) raised objections with regard to filing of this Petition beyond prescribed limitation and that it was instituted through an unauthorized person, but I avoided to indulge in these legal issues and opted to decide it on its facts.
3. Arguments heard and record gone through.
4. Shorn of inessential details, admittedly earlier civil as well as criminal litigation boiled out inter se the parties and during pendency of Writ Petition No.9889 of 1992 ultimately the parties to this lis congenially settled their disputes and submitted deed of compromise dated 25.03.1997 (Exh.P7) before this Court to bury the ongoing dimensional and elongated litigation. Consequently, not only the proceedings initiated on behalf of respondent No.1 /plaintiff was backed away and criminal cases lodged against officials/officers of the petitioner were withdrawn under section 494 of the Criminal Procedure Code, 1898, rather Rapt Roznamcha No.474 (Exh.P6) besides Mutation No.768 (Exh.P12) was also entered, wherein the ownership as well as possession of the former over the subject land was admitted, however, it was not sanctioned, compelling him to institute the suit. Although it was contended by the petitioner, but importantly the deed of compromise (Exh.P-7) and withdrawal of earlier litigation including criminal cases against officials of the petitioner thereunder was not denied in any manner, however, it was merely claimed that Exh.P7 had been procured without permission from competent Authority. The result of the protracted trial was that the suit was decreed and the appeal of the petitioner failed vide unanimous decrees of the learned lower Fora as disclosed in para-1 ante.
5. The emphasis of Mr. Muhammad Naeem Sadiq, Advocate for petitioner that compromise deed could not be proved as per requirement of law was not tenable on the sole ground that admitted facts need not to be proved, whereas record reflected that both of the marginal witnesses (PWs1 and 2) thereof even then were examined, moreover the solitary witness (DW1) on behalf of the petitioner also conceded in his deposition that Exh.P7 was executed among the parties. Admittedly, the compromise was settled to save the petitioner-Society from the prospect of protracted as well as uncertain litigation besides to save its officials from arrest by police. The compromise was acted upon without raising any objection when the civil and criminal cases were dropped by respondent No.1, but it turned objectionable where it became advantageous to latter. As such, the petitioner being acquiesced to Exh.P7 was not in a position to demur with it subsequently.
The next accentuation of Mr. Muhammad Naeem Sadiq, Advocate for the petitioner that the affairs of the petitioner/ Society were being run and managed by the elected Managing Committee and the supreme Authority of the Society vested to its General Body, but without fetching any sanction, the President alone was not authorized to deal with its affairs, as such compromise on behalf of latter without any prior accord from the Registrar, Cooperative Societies was void ab initio and illegal, was also not well founded, for the counts; firstly, that to prove all it, Makhdoom Altaf Hussain, Ex-President, who executed Exh.P7 despite availability was not examined in spite of that he could be the best person to prove the fact, so asserted by learned counsel, as such hostile inference under Article 129 illustration (g) of the Order, 1984 would come into play that had he been summoned, he would have negated this plea; secondly, that it was proved on record that Registrar of the Cooperative Societies had accorded permission to settle the compromise, and thirdly, that the solitary witness of the petitioner in his cross-examination also admitted that the Committee had granted permission to the then President. For ready reference, the words uttered by DW1 in the cross examination, in verbatim are reproduced, hereunder:-
Had there been no permission granted on behalf of Competent Authority, some penal as well as disciplinary proceedings against the executant of settlement on behalf of petitioner might have been initiated, but neither any other well-conversant officer was produced nor single document was tendered to show that alleged culprit of the petitioner was put to task and merely a sham defence was grafted just to defer the fruit of the compromise to respondent No.1 for indefinite period by the petitioner, who succeeded in his object.
6. After delving deep in the merits of the case as discussed herein above, I would like to add that a compromise made before the Court of law has to be given sanctity while applying principle of estoppel as well to respect moral and ethical rules and if retraction therefrom is allowed as a matter of right, then it will definitely result into distrust of the public litigants over the Judiciary, which would definitely damage the sacred image of the judicial system that the Courts are infertile to make implementation of orders passed by them in the judicial proceedings. Reliance can be placed upon Farzana Rasool and 3 others v. Dr. Muhammad Bashir and others (2011 SCMR 1361).
There is no cavil that during the pendency of a dispute between the parties, amicable settlement thereof by them is always welcomed by the Court of law and its resolution in this manner is clearly a valid as well as binding arrangements by the parties thereto, who subsequently cannot be permitted to deny, ignore or resile therefrom without any valid reason. In arriving at this view, I am fortified by the dictum laid down in Upendra Nath Bose v. Bindeshiri Prosad (AIR 1916 Calcutta 843) to the following effect:- "a compromise is an agreement to put an end to disputes and to terminate or avoid litigation, and in such cases, the consideration which each party receives is the settlement of the dispute, the real consideration is not, the sacrifice of a right but the abandonment of claim."
In another case titled Srimati Sabitri Thakurain v. Mrs. F.A. Savi and others (AIR 1933 Patna 306) with more clarity it was concluded as under:-
"Now this determination may be arrived in one of two ways; either after contest by the Court coming to its own conclusion on the materials placed before it, or on the parties themselves agreeing to settle their difference on certain lines and asking the Court to adjudicate their respective rights and liabilities in accordance with that settlement. In both cases the Court has to pass orders. In one case the order is based on the decision of the Court itself and in the other the Court, after being informed of the agreement of the parties makes a formal adjudication on the basis of the agreement. In both cases the court will generally order the parties to carry out their respective obligations. An adjudication may in some cases, be purely declaratory; this will happen if a declaration be sufficient to give the party having a right all the relief he is in need of. If on the other hand, a declaration is not enough, the Court will order the party, who has infringed the right of another to restore that right to the rightful party as found by the Court, or as admitted by the other party. What the parties do in a compromise of a suit is to adjust their rights and liabilities outside the Court and then come and ask the Court to recognize those rights and liabilities and pass its formal expression of adjudication accordingly. This is what is provided in O. XXIII, R.
3. The Court is required to record the compromise, which thus really takes the place of a judgment in a contested suit."
In the same pattern, this Court in the judgment styled as Khawar Saeed Raza v. Wajahat Iqbal (2003 CLC 1306) clinched the identical controversy while concluding as under:-
Compromise is admitted which became part of the order, which stipulated the withdrawal of the suit by the respondent. Under section 36 Civil Procedure Code, 1908, the provisions of the Code relating to the execution of decree are also applicable to orders. Even if there was no decree in existence an order disposing of the suit in terms of the compromise is very much there, binding upon and operative qua the parties. In Kilachand Devchand and Co. V. Ajodhuaprasad Sukhamnand and others AIR 1934 Bombay 452, it was observed that if the Court had jurisdiction to make the order it had necessarily the power and jurisdiction to enforce the same and the law does not allow its machinery to be clogged in this respect.
The sequitur of all this would be that compromise means an agreement among the parties to settle the dispute for all times to come and receipt of consideration by a party thereto will not be deemed to be sacrifice of right rather relinquishment of claim.
7. The narrative of discussion herein above would be that Courts below were perfect to equip respondent No.1 with the decree while honouring the compromise. The learned counsel for the petitioner had nothing at his end to persuade that any wrong was committed by them, as such being sanguine, their unanimous views are approved, the Civil Revision being meritless is dismissed with costs throughout.
ZC/W-5/L Revision dismissed.