FAIZUR RAHMAN vs RAHMAN UD DIN Alias MIRZA And Other
The petitioner sought leave to appeal against a judgment of the Peshawar High Court, which dismissed a review petition concerning an ex parte decree for possession through pre-emption. The underlying suit was originally decreed by an Assistant Collector under the PATA Regulation. Subsequently, the respondent successfully applied to set aside the ex parte decree. This order was challenged in a writ petition on the grounds that the Assistant Collector lacked jurisdiction following a Supreme Court judgment declaring the PATA Regulation invalid. During the writ petition proceedings, the parties reached a consensus to set aside the ex parte decree subject to the respondent paying costs of Rs.1,000. The High Court disposed of the writ petition based on this consent. The petitioner later sought a review of this order. The Supreme Court held that since the petitioner's counsel had consented to the arrangement in the High Court, the order was binding. The Court affirmed that irrespective of the initial jurisdictional issues regarding the Assistant Collector, a consent order passed in constitutional jurisdiction is valid and not subject to review, leading to the dismissal of the petition.
- Can a party challenge an order in review proceedings if that order was passed in the High Court based on the express consent of the parties?
- Does a consent order recorded in constitutional jurisdiction preclude a party from later challenging the underlying jurisdictional competence of the original forum?
ORDER
FAZAL ILAHI KHAN, J.---Petitioner seeks leave to appeal against the judgment/order dated 18-9- 1995 of the learned Peshawar High Court, Peshawar passed in Civil Review Petition No.22 of 1995.
2. The order of which review was sought for pertains to suit brought by the petitioner for possession through pre-emption before the Assistant Collector exercising the power of Deputy Commissioner under PATA Regulation. The suit was decreed ex parte on 13-8-199r. Respondent on coming to know of the decree applied for setting aside the same. His application was accepted on 9-6-1994.
Aforementioned order was challenged in Writ Petition No.674 of 1994 mainly on the ground that the Assistant Collector ceased to exercise the power in pursuance of the judgment of this Court declaring PATA Regulation as a bad law.
3. The learned counsel for the parties, at the the of the hearing of the petition, agreed that the ex pane decree be set aside provided the respondent pay Rs.1,000 as cost to the petitioner which was to be deposited in the competent Court of Ilaqat Qazi/Civil Judge. The writ petition was disposed of accordingly. Review was sought- for the aforementioned order.
4. It is not denied that the learned counsel appearing for the petitioner in the writ petition did agree to the setting aside of the decree on payment of cost of Rs.1,000; hence, irrespective of the fact whether the Assistant Collector who had initially passed order had the jurisdiction or not the order having been affirmed with the consent of the parties in the High Court in Constitutional jurisdiction, no objection could be raised to the order. We, therefore, find no infirmity in the judgment of the learned High Court which was legally correct in holding that no case had been made out for review. This petition is, accordingly, dismissed and leave is refused.
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