Messrs ORIENT OCCIDENT (PVT.) LTD. through Director Versus Messrs UPAZA COMMERCIAL ENTERPRISES through Proprietor
MAULVI ANWARUL HAQ, J .---On 22-10-1995, respondent No.1 filed a suit against the appellants and respondents Nos. 2 and 3 for recovery of Rs.32,39,412. In view of narration of the facts to follow the contents of the plaint need not be reproduced in detail, suffice it to say that as per details given in para-4 of the plaint, the defendants in the case were said to have purchased rice of the value of Rs.38,39,412.62 from the plaintiff/respondent No.1. As per para.7, the defendants made a payment of Rs.6,00,000 leaving a balance of Rs.32,39,412 i.e. the suit amount. A decree was accordingly prayed for. It appears that the record of the suit was burn and the same was reconstructed and the matter was being adjourned accordingly. On 15-9-1996, the case was taken up in, presence of Col. (R) Umar Khalid, Proprietor of respondent No.1/plaintiff and Wazir Ahmad, Director of the appellant No.1. It was stated that a compromise has been entered into between the parties. Whereas the plaintiff has claimed a sum of Rs.32,39,412 from the defendants, it has .been agreed that the plaintiff shall be paid a sum of Rs.24,81,412. A sum of Rs.3,00,000 has already been paid in cash. A Bank Draft in the sum of Rs.12,89,412 drawn on National Bank of Pakistan, dated 15-9-1996 has been delivered. The balance amount of Rs.9,00,000 will be paid on 30-9-1996 and the learned trial Court also recorded the receipt of said bank draft by said Umar Khalid. The case was adjourned to 30-9-1996. On this date the case was adjourned on the request received from the learned counsel for the defendants to 5-10-1996. On 5-10-1996, learned counsel for the defendants stated that Cheques Nos.712826 to 712850 drawn against Account No. 8196-9 at National Bank of Pakistan are lying with Col. (R) Umar Khalid and in case he states that he will destroy the said cheques and that he or his heirs or any person would not use the said cheques, balance amount of Rs.9,00,000 is ready for payment to him and bank draft, dated 3-10-1996 has been got issued. Photocopy of the same was presented. Learned counsel further stated that in case of non-compliance of the said condition he has instructions not to make balance payment.
2. Learned trial Court then recorded the statement of the learned counsel for the plaintiff/respondent No.1. He stated that the said condition regarding cheques is not relatable to the suit and is a delaying tactics and as such he is not prepared to make any statement regarding the same. Thereafter learned trial Court passed an order which we deem appropriate to reproduce hereunder:--
The suit was later transferred to another learned Court where a miscellaneous application under section 151, C.P.C, was filed by the defendants. The case was adjourned to 29-10-1996. A reply was filed on 23-11-1996. Thereafter the case was being adjourned from time to time for arguments on the said application. On 5-4-1997, the said application was called for hearing when the plaintiff/respondent No.1 along with his counsel was present and none appeared for the defendants. Learned trial Court not only dismissed the said application for non-prosecution but also proceeded ex parse against the defendants in the suit itself. Ex parse evidence was recorded and the suit was decreed in the sum of Rs.29,02,608 on 16-4-1997. We may note here that while calculating the said amount learned trial Court adjusted the amount paid as a result of said compromise.
3. This appeal on the face of it is barred by time. Learned counsel contends that the impugned ex parte judgment and decree is wholly without jurisdiction. According to him a compromise had been duly recorded and further acted upon and as such learned trial Court was bound to pass a judgment in the suit in accordance with the same. The appellant had never refused to make further payment rather bank draft was brought to the Court. Further points out that the date on which the ex parte proceedings were ordered was not the date in the suit. The respondents have proceeded against ex parte in this case.
4. We have gone through the record with the assistance of the learned counsel and we have narrated above the details of the proceedings that have taken place before the learned trial Court. Before we proceed further, we may note here that the appellants prayed for the stay of execution of the decree vide C.M.No.2/C/O1. This C.M. was taken up on 27-8-2002 in presence of the learned counsel for the appellant and Mr. Saeed Sabir, Advocate, learned counsel for the plaintiff/respondent No.1/decree-holder. The appellants offered that they are ready to make deposit of Rs.9,00,000 which was admittedly a balance .compromise amount and to furnish security for the remaining amount. This offer was accepted by the learned counsel for respondent No. 1. A direction was issued to the appellants to deposit the said amount and further allowed the respondent No.1 to withdraw the said amount. The execution was stayed. Learned counsel states at the bar that as per his instructions, the said amount has since been withdrawn by respondent No. 1. Later respondent No. l absented himself on 22-11-2005. Notice was issued to him which was duly served but he failed to appear and was proceeded against ex parte on 18-4-2006.
5. As noted by us above, both the parties stated that a compromise has been effected, entire suit has been adjusted subject to payment of Rs.24,81,412 by the defendants to the plaintiff/respondent No.1. Receipt of Rs.3,00,000 in cash was acknowledged while bank draft for Rs.12,81,412 delivered unto respondent No.1. On 5-10-1996, the appellants had brought balance payment with them in the form of bank draft but their learned counsel put up the said condition regarding cheques which were in possession of the respondent No.1. Learned counsel for respondent No. 1 stated that his client does not want to give any statement in this behalf: Learned trial Court proceeded to observe ( ﺮﺍﻀﻰﻧﺎﻤﻪﻧﻪﻫﻮﺴﻜﺎ )".To our mind this observation is wholly without lawful authority. The compromise and conditions had been recorded and partly acted upon. Even if the defendants had not paid the balance, a decree could have been passed acid the amount could have been recovered in execution. However, a compromise had been effected and already recorded. Learned counsel relies on the cases "Sourendra Nath Mitre and others v. Tarubala Dasi" (AIR 1930 PC 158), "Charles Hulett Kirsch v. Edward Ketih Walcot and others" (AIR 1929 PC 289) and the judgment of AJK Supreme Court in the case Shaukat Habib and 5 others v. Raja Muhammad Bashir and. another" (2004 YLR 175), to urge that once a compromise had been recorded, the Court was bound to pass a decree in accordance therewith. We also find that on 5-4-1997 only the said miscellaneous application was called for hearing and the suit itself was neither fixed nor called for hearing. Learned trial Court could dismiss the application for non-prosecution but it had no jurisdiction to proceed against the defendants in the suit ex parte. Reference be made to the case of "Qazi Muhammad Tariq v. Hasin Jahan and 3 others" (1993 SCMR 1949).
6. This leaves the .question of limitation in filing of this first appeal. As discussed byus above, the impugned judgment and decree is wholly without jurisdiction. The compromise had been effected acid was in fact recorded by the learned Trial Court and it had no option but to pass a decree in accordance therewith. Instead of doing the needful, learned trial Court proceeded against the defendants ex pane on a date) on which the suit was not fixed for hearing.
7. In the said circumstance of the case, question of limitation does not arise and in airy ease is of no significance. Reference be made to the case "Sardar Ahmed `Yar Khan' Jogenzai and 2 others v. Province of Baluchistan through Secretary C&W Department" (2002 SCMR 122). The following excerpt from the leading opinion in the said judgment is reproduced hereunder:--
"It is well-settled that when essential features for assumption of jurisdiction are contravened or forum exercises powers not vested in it, or exceeds authority beyond limits prescribed by law, the judgment is rendered coram non-judice and inoperative. The question regarding bar of limitation in such exceptional cases loses significance. For authority reference can be made to the observation in cases;
(i) Atta Muhammad Qureshi v. The Settlement Commissioner and others (PLD 1971 SC 61).
(ii) Mrs. Zubaida Begum v. Mrs. S.T. Naqvi (1986 SCMR 261).
(iii) Malik Khawaja Muhammad and another v. Provincial Government of Baluchistan through Collector Khuzdar (1986 CLC 2951).
Since the impugned decision of executing Court conflicts with judgment of High Court, dated 4-11-1985, clearly .contravening settled principles of justice and spirit of law, therefore, same is coram non-judice and devoid of lawful authority. Thus, hi the peculiar circumstances bar of limitation would not apply, and delay in filing appeal for the above reasons is condonable. Accordingly I am inclined to exercise discretion in favour of the appellants by granting request concerning condonation of delay.
8. Delay in filing of this R.F.A. is accordingly condoned. The entire amount in accordance. with the compromise entered upon between the parties stands paid. The R.F.A. accordingly is allowed. The impugned judgment and decree, dated 16-4-1997, passed by learned trial F Court is set aside and instead a decree is passed in favour of the plaintiff/respondent No.1 and against the defendants in the suit in accordance with the compromise recorded on 15-9-1996 in the sum of Rs.24,81,412 which entire amount stands paid or deposited.
9. No order as to cost.
10. Records of the learned trial Court be remitted back immediately.
S.A.K./O-1.K/L Appeal accepted.