GHULAM RASOOL Versus GHULAM NABI

MUDASSIR KHALID ABBASI, J.--- Through this civil revision, petitioner has challenged the legality of order dated 26.04.2006 passed by learned Additional District Judge, Mailsi whereby appeal filed by respondents was accepted.

2. Brief facts of the case are that petitioner filed a suit for declaration calling in question mutation No. 129 dated 31.07.1986. Notices were issued to respondents. On 25.06.2005, respondent No. 1 along with his counsel entered appearance before the trial court. Petitioner as well as respondent No. 1 recorded their joint statement to the effect that they have entered into a compromise as per Mark-A therefore, defendants Nos.2 to 4 were summoned who appeared alongwith their counsel on 14.07.2005 and recorded their joint statement. Case was fixed for orders. On 18.12.2005, defendant No.1 moved an application for cancellation/withdrawal of compromise. This was contested by the plaintiff/present petitioner. On 16.02.2006 while deciding this application, learned trial Court passed following order:-

It shows that the defendant No. 1/petitioner while appearing before the court admitted correctness of the compromise/mark-A and he admitted all the contents of compromise Mark-A. Now the petitioner's assertion that same was not read over to him is forceless. So, this petition stands rejected. However, keeping in view the statements of the parties dated 25.06.2005, the instant suit stands disposed of. The compromise of the parties would be deemed as a part of this order. Decree sheet be drawn accordingly.

This was challenged by the respondents before the appellate Court and the same was disposed of vide impugned judgment dated 26.04.2006 in the following terms:-

As result of the above discussion the appeal of the appellant/defendant is accepted, and impugned order is set aside the case is remanded back to the trial court with a direction that it should seek written reply from the parties and then to proceed with it in accordance with law, Order accordingly.

3. Learned counsel for the petitioner contends that the impugned order passed by the trial Court was in consonance to the compromise arrived at, by the parties and there was no reason/justification for the appellate Court to set aside the same. Contends that once the parties had appeared and got their statements recorded alongwith the compromise deed, subsequent withdrawal/revocation is not permissible and the Court has to follow the compromise. While placing reliance on 2001 SCMR 46, learned counsel for the petitioner states that court is not under obligation to frame issue and record evidence and follow the procedure prescribed for decision in a suit. Further contends that even in the eventuality of fraud and misrepresentation under section 12(2) it is not incumbent upon the court that it must, in all circumstances frame issue and record the evidence, as laid down in 2000 SCMR 296. While relying on 2011 YLR 1357 Peshawar it has been contended that once compromise was recorded in the court and the court was satisfied about its genuineness then court is bound to pass decree in accordance therewith.

4. Conversely, learned counsel for respondent has vehemently opposed the contentions raised by the other side on the ground that the impugned order passed by the trial court is in violation of Order XXIII, Rule 3, C.P.C. Argued that the statements recorded by the defendants were not on oath rather on solemn affirmation. While relying on a case reported as 1991 MLD 48 Lahore, learned counsel states that under the Oaths Act, 1873 Court should have recorded the statement on Oath. Contends that statements of respondents 2 to 4 were obtained through misrepresentation and they were not party to the compromise Mark-A. This revision petition is liable to be dismissed.

5. I have given my conscious thought to the contentions raised by the learned counsel for the parties and has gone through the record.

6. Pivotal feature of the controversy involved in this case is that as to whether the trial court had any legal justification to dispose of the suit on the basis of compromise Mark-A, adjudicating upon an application filed by the present respondents for cancellation/revocation of compromise deed dated 25.06.2005 and while passing the impugned order dated 16.02.2006, trial court was under obligation to pass a decree or simply dispose of the suit and as to whether the provisions of Order XXIII, Rule 3, C.P.C. were adhered to or not.

7. At the first instance while addressing the afore-cited question, it is relevant to mention here that in fact Mark-A compromise deed, on the basis of which impugned order has been passed by the trial court has not been executed by all the respondents except respondent No. 1. On 25.06.2005 a joint statement of petitioner and respondent No. 1 was recorded in the following terms:

Subsequently, on 14.07.2005 remaining defendants/present respondents Nos. 2, 3 and 4 also got their statements recorded in following terms:-

Neither this statement nor the statement Mark-A of petitioner and respondent No. 1 was acted upon. In the meanwhile and application was filed by the respondent No. 1 for cancellation/revocation of the compromise. It was contested by the other side by filing reply, 16.02.2016 was fixed for arguments on the application for cancellation/revocation of compromise whereas the trial Court proceeded to "dispose of" the suit by observing that "the petition stands rejected, however, keeping in view the statements of the parties dated 25.06.2005, instant suit stands disposed of, compromise of the parties would be deemed as part of this order. Decree sheet be drawn accordingly". This according to my view is not permissible in law with particular reference to the facts of the present case. Order XXXII, Rule 3 unambiguously envisages as under:-

Compromise of suit.---Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit:-

Provided that where it is alleged by one party and denied by the other than an adjustment or satisfaction has been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment.

Plain reading of the afore-stated provisions make it abundantly clear that while deciding a suit on the basis of compromise, passing of decree is a mandatory requirement. This has not been followed by the trial court, while passing order dated 16.2.2006. Decree has been defined in section 2, C.P.C. in following terms:-

2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within ^[3] * * * section 144, but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

8. Although the remaining respondents have also made a statement on 14.07.2005, however, the statement dated 25.06.2005 relied by the trial Court while passing the impugned order dated 16.02.2016, was not made by all the respondents/defendants except respondent/defendant No.1 and same is the case regarding the execution of "Mark-A" compromise deed.

What has been narrated above, I am not persuaded to interfere in the impugned judgment dated 26.04.2006 passed by lower appellate Court. This civil revision does not succeed and is dismissed with no order as to cost.

MH/G-11/L Revision dismissed.