LAL BUX Versus ABDUL RASOOL

1. This revision application has been filed challenging the judgment passed by learned Additional District Judge, Hyderabad in Miscellaneous Appeal No.127 of 1973.

2. Briefly the facts giving rise to this Revision Application are that the present applicants had filed the Third Class Suit No.28 of 1973 before the Civil Judge, Tando Allahyar seeking the following reliefs:

(a) Declare that the plaintiffs are the owners of the suit land and that they are entitled to remain in possession of the suit land.

(b) Restrain the defendants permanently from interfering with the possession of the plaintiffs over suit land in any manner through themselves, their servants, agents or any one else.

(c) Cost of the suit be borne by the defendants.

(d) Any other relief that this Hon'ble Court may deem fit and proper under the circumstances of the suit."

3. The respondents, who were the defendants in the suit, 'filed their written statement and contested the same. However, at a subsequent stage, the parties entered into a compromise and an application was moved before the Court under Order XXIII, rule 3, C.P.C. on 29‑5‑1973. The contents of this application show that the parties had reached‑a compromise as under:

4. "(1) The suit property bearing S.Nos.626/4‑A and 654/2‑3 Deh Seherki Tando Dasori, Taluka Tando Allahyar measuring 12 acres 9 Ghuntas is in possession of the plaintiffs and they are the Haris from beginning.

(2) Both the defendants admit that the plaintiff Lal Bux is and shall remain its owner and that the defendants would give such statement before the Mukhtiarkar or before any other competent Revenue Officer, so that the land could be mutated in the name of the plaintiff and if need be, they would execute such document, the costs whereof shall be borne by plaintiff Lal Bux.

(3) The price of the land has already been paid up by plaintiffs Lal Bux and Ghulam Akbar to the Government. There is nothing due towards the defendants and that the defendants would have no right to claim further payment from the plaintiff.

(4) The defendants shall have no concern from today with the land and that they shall not interfere in the land in any manner.

(5) The costs of the suit would be borne by parties."

5. This application is signed by both the plaintiffs and both the defendants as well as their respective Advocates. On this application an order was passed by the Civil Judge Tando Allahyar on 29‑5‑1973 as under:

"ORDER

6. One of the plaintiffs is absent. Parties request that the compromise be accepted when the other plaintiff comes. File alongwith suit papers.

7. (Sd.) 29‑5‑1973

8. Civil Judge, Tando Allahyar."

9. However, the matter was again taken up on 17‑7‑1973 when one of the defendants Ahmed remained absent while the, other defendant Abdul Rasool said that he is not going to compromise as he had not been paid the amount stipulated. In these circumstances, the trial Court declined to record the compromise. Being aggrieved the present applicants preferred Miscellaneous Civil Appeal No.127 of 1973 which was dismissed by learned Additional District Judge, Hyderabad vide orders passed on 1‑4‑1980. Hence this Revision Application.

10. I have heard Mr. Hassan Mahmood Baig, the learned counsel for applicants and Mr. Hamid Hussain, the learned counsel for respondents. The two orders passed by the trial Court on 29‑5‑1973 and 17‑7‑1973 clearly show that on the first date both the defendants were present who asked the Court to accept the compromise. This fact is further supported by the signatures of the defendants' Advocate Mr. Abdul Wahab on this compromise application. I have perused the Vakalatnama of Mr. Abdul Wahab, Advocate which is filed in the trial Court. This Vakalatnama includes the power to compromise on behalf of his clients. As against this the Vakalatnama of Mr. Hassan Mahmood Baig, Advocate for applicants does not include the power to compromise and, therefore, the trial Court had rightly adjourned the case to another date as one of the plaintiffs was not present . However, on the next date both the plaintiffs were present, their Advocate was present and they admitted the compromise on the terms as appear from the order but one of the defendants, namely, Ahmed remained absent while the other defendant Abdul Rasool stated that now he does not want to compromise because he has not been paid the stipulated amount. Suffice it to say that the application under Order XXIII, rule 3, C.P.C. does not make any mention of any amount to be paid to the defendants. The learned Additional District Judge has declined to accept the appeal amongst other grounds for the reason that no consideration has passed. It may be observed that consideration does not always mean the money but there can be other considerations too. The word "consideration" has been defined in section 2(d) of the Contract Act which reads as under:

11. "(d) When, at the desire of the promisor, the promisee or any other person who has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise."

12. In these circumstances for all purposes it appears that the compromise was effected between the parties as at no stage the present respondents have denied having entered into compromise or having put their signatures on the application of compromise. They have also not challenged the orders passed by the trial Court on 22‑5‑1973 to the effect that the parties had requested the Court to accept the compromise. Even their Advocate had not filed any such denial or affidavit. In these circumstances, I am satisfied that the parties had entered into a compromise. ,

13. Now provisions of Order XXIII, rule 3, C.P.C. provide that when the Court is satisfied that a compromise is effected between the parties it becomes mandatory for the Court to record the compromise. However, any party to the compromise, if takes a plea with regard to some mutual arrangement etc. or violation in terms of the compromise, it would be for that party to seek a proper legal remedy for that if so permitted under the law. Mr. Hassan Mahmood Baig, the learned counsel for applicants has referred to a number of cases. In the case of Mirza Iqrar Beg v. M.V. Hannan (P.L.D. 1979 Karachi 620) Naimuddin, J., (as his Lordship then was) has been pleased to hold as under:

14. "However, the Court must find, When ever there is a dispute between the parties whether the agreement or the compromise has really been arrived at or not. Without this finding it will be impossible for the Court to record an agreement or a compromise, muchless to pass a decree in accordance therewith. The whole purpose of rule 3 will be lost if the Court is deprived of the powers to decide whether the agreement or the compromise pleaded by a party has been reached or not. If it is held that the Court is not possessed of that power it will enable any dishonest litigant to get away from an agreement or a compromise reached by him freely and lawfully merely by pleading that he had not done so. That could never the intention of the legislature.

15. In the present case none of the parties has gone in the witness‑box. The plaintiff has not filed any counter‑affidavit denying the factum of entering into compromise pleaded by the defendant. On the contrary the plaintiff had admitted ' the execution of the receipt reproduced hereinabove in extenso which clearly proves the compromise. His Advocate also admitted at the bar to have received Rs.750 on account of his professional fee from the defendant although it has not been so pleaded in the application under Order XXIII rule 3, C.P.C."

16. In the case of Mst. Sajida Sultana v Eastern Traders (PLD 1971 Karachi 109) Dorab Patel, J. (as his Lordship then was) held as under:

17. "Mr. Kidwai, who appeared on behalf of the plaintiff, admitted the execution of the said agreement by the first plaintiff, but she submitted that her signature had been obtained under fraud and coercion, therefore, the application was not fit to be granted under Order XXIII, rule 3, C.P.C. In support of this submission he relied on the Income Tax Assessment Order of this old firm of Eastern Traders for the year ending on 31st March, 1966. According to this Order, the share of the deceased in the books of firm was Rs.1,16,433.50 on 31st March, 1966. As this amount exceeds the amount fixed under the said agreement as the share of the deceased Mr. Kidwai submitted that the first plaintiff, who was a Purdahnasheen lady had been deceived into signing it. The failure of the defendant to produce evidence in rebuttal lends support to Mr. Kidwai's arguments but I do not think, the defendant's application can be refused merely on the allegation that the first plaintiff was deceived, though it might be open for her to file a suit to enforce her rights."

18. Similar view was held by a Division Bench in the case of Sree Nalini Kanta Sen v. Babu Monaranjan Prasad Barman (PLD 1967 Dacca 155).

19. As against this Mr. Hamid Hussain, the learned counsel for respondents has submitted that the compromise does not contain any lawful adjustment of the suit. He has placed reliance on the case of Mst. Khursheed Begum v. Mir Muhammad and others (1990 CLC 1614).

20. In view of the above discussion the consideration being contained in the compromise application i.e. abstinence of the defendants from taking any further action and specific admission that no accounts of any party is due against other, itself amounts to consideration and compromise application cannot be said to be of unlawful consideration. In the above‑cited case of Mst. Khursheed Begum cited by the learned counsel for respondents a learned Single Judge of Peshawar High Court has been pleased to also hold that where it has come to the satisfaction of the Court that a suit has been compromised then it should order the compromise to be recorded.

21. In these circumstances I accept this Revision Application, set aside the orders passed by the lower appellate Court and remand the case to the Civil Judge, Tando Allahyar with the direction to record the compromise as contained in the application under Order XXIII, rule 3, C.P.C. and pass the decree accordingly, however, there will be no order as to costs.

22. AA./L‑72/K Revision accepted.