PLJ 1999 Lahore 1051
Present: SHAIKH ABDUR RAZZAQ,
J. NABI BAKHSH and 4
others-Petitioners
versus MUHAMMAD BAKHSH and 6 others-Respondents
C.R. No. 369-D of 1998, heard on 24.11.1998.
Specific Relief Act, 1877 (I of 1877)--
—S. 42-Civil Procedure Code (V of 1908),
O.XXIIl, R. 3 read with S. 115-Suit for permanent injunction restraining defendants for
using property as through are-Disposal of suit
by trial Court on basis of compromise duly recorded on statements of parties as
well as their counsels-Whether consent decree can be challenged, if so under
what grounds-Application of S. 115 C.P.C.-Admittedly, order has been passed on
basis of compromise
as is evident from its bare reading-Record reveals that after submission of
objections on report of local commission, parties kept seeking adjournment
from 10.12.1996 to 10.6.1997 as talks of compromise were going on-Thus impugned
order/decree was not passed abruptly and is result of due deliberation and
consultation which continued for about six months-It is also fact that authority given by plaintiffs/petitioner
to counsel who had signed compromise statement on their behalf had
never been revoked by them-Thus such compromise entered into by counsel on behalf of
party would bind such party-Section 115 C.P.C. applies to cases, involving
illegal assumption, non exercise or irregular exercise of jurisdiction-Neither any
such aspect has been put forth or highlighted, nor is seemingly available so as
to attract or entail provisions of Section 115 C.P.C., which thus can
neither, come into play nor pressed into service-Held: Consent Order/decree can
only be challenged
on ground of fraud-Held further: Judgments and decrees now sought are
unexceptionable as same neither appear to suffer from any infirmity or any
irregularity no perversity or arbitrariness-Revision petition merits
dismissal and dismissed accordingly.
[Pp. 1053, 1054 & 1055] A to F
1997 MLD 1953, 1997
SCMR 181 and PLD 1996 SC 213.
Kanwar Iqbal Ahmad Khan, Advocate for
Petitioners. Mr. Ghulam Murtaza Malik, Advocate for Respondents. Date of hearing:
24.11.1998.
judgment
This revision petition is directed
against the judgment and decree dated 4.4.1998 passed by the learned
Additional District Judge, Alipur, District Muzaffargarh, whereby he confirmed
the judgment and decree dated 10.6.1997 passed by the learned Civil Judge 1st Class,
Alipur.
2. Briefly stated
the facts are that the petitioners/plaintiffs filed a suit for permanent
injunction restraining the respondents/defendants to use their property as
thoroughfare. The claim of the petitioners was resisted by the respondents.
During the pendency of suit the trial Court appointed a Local Commissioner to
inspect the site and submit report. Accordingly the report was submitted on
13.10.1994. The petitioners filed their objections to the report on
27.11.1994. The matter was thereafter adjourned to various dates for effecting
compromise and finally the matter was disposed of on 10.6.1997 on the
basis of compromise duly recorded on the statements of parties as well as their
counsel.
3.
The
petitioners/plaintiffs felt aggrieved of the said order dated 10.6.1997 and assailed the same before the learned
Additional District Judge, Alipur. who
did not find favour with the contentions of the petitioners and dismissed the appeal vide judgment and decree
dated 4.4.1998. Having felt
dissatisfied with the said judgment and decree dated 4.4.1998, instant civil revision has been
instituted.
4.
Arguments have been heard and record perused.
5. It is contended by the learned counsel for the
petitioners that order dated
10.6.1997 is alleged to have been passed on the basis of compromise, as stipulated by Order XXin Rule 3
C.P.C. but it does not fulfil the requirements contained therein. While
explaining his stand, he added that if the
parties had to decide the matter on the basis of compromise, then their statements must have been recorded separately.
However, the record shows that no
separate statements were recorded and the suit had been decided on the basis of an order statedly to be
unanimous statement of the parties.
He next argued that local commission was appointed for the disposal
of interim injunction application and not for the final disposal of suit. As such no final adjudication of matter in issue could be made on the basis of said report of local commission. He thus argued that by no stretch of imagination, order dated 10.6.1997 can be construed to be an order passed on the basis of compromise arrived at between the parties.
of interim injunction application and not for the final disposal of suit. As such no final adjudication of matter in issue could be made on the basis of said report of local commission. He thus argued that by no stretch of imagination, order dated 10.6.1997 can be construed to be an order passed on the basis of compromise arrived at between the parties.
6. Conversely the impugned order dated
10.6.1997 has been supported by the learned counsel for the
respondents. He contended that factum
of compromise is reflected from their unanimous statement which was duly signed by their respective learned
counsel and trial Court was fully competent
to pass
a ompromise
decree/order accordingly, that the impugned order being a consent order could only be challenged if some
fraud had been alleged and that too
in clear cut terms, that no such plea has been taken in the instant case and even on this score the impugned
decree/order is warranted by law and
relied upon Mumtaz Begum versus Karachi Buildings Control Authority and 3 others (1997 M.L.D. 1953 Karachi), that a compromise entered into by the counsel on behalf
of parties is binding on them and
leave to appeal was refused by the Apex Court of this country and relied upon Messrs Azhar Asia Shipping Agency
& another versus Ghaffar Corporation
(PLD 1996 Supreme Court 213),
that a consent order to which the
counsel is a party is binding on the said party even, if it is assumed
that the counsel had exceeded his
authority and relied upon Allah Ditto versus Bashir Ahmad (1997
S.C.M.R. 181). He thus submitted that the impugned order does not suffer from any jurisdictional
defect, as such the civil revision merits
dismissal.
7. Admittedly the order dated 10.6.1997 has been
passed on the basis of compromise as
is evident from its bare reading. It is also duly thumb marked and signed by the parties as well as their
respective counsel. The impugned order has been passed under the provisions of
Rule 3 of Order XXm C.P.C. which reads as follows:-
"3. 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, 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
suit."
A bare reading of Rule 3, Order XXIII
C.P.C. shows that it is the satisfaction of the Court which allows the compromise and
disposes the matter on the basis of compromise. Record reveals that after the
submission of objection son the report of local commission, parties kept on
seeking adjournments from 10.12.1996 to 10.6.1997 as talks of compromise were
going on. Thus the impugned order/decree dated 10.6.1997 was not passed abruptly and is the
result of due deliberation and consultation which continued for about six months. Again it is
admitted fact that a consent order/decree can only be challenged on the
ground of fraud as held in Mumtaz Begum versus Karachi Buildings Control Authority and 5 others (1997 M.L.D. 1953 Karachi) and there being
no such plea having been raised by the petitioners, the impugned order cannot be interfered with. It is also fact
that parties are bound by the statements
of their counsel even if they exceed their authority as held in Allah Ditto versus Bashir Ahmad (1997
S.C.M.R. 181), so even oh this
score, the impugned order having been
signed by their counsel is binding on the parties with equal force.
8.
It is also fact that authority given by the
plaintiffs/petitioners to counsel who had signed compromise statement on their
behalf, had never been revoked by them. Thus such compromise entered into by counsel on behalf of a party
would bind such party. Reliance is placed upon Messrs Azhar Asia Shipping
Agency and another vs. Ghaffar Corporation (PLD 1996 SC 213).
9.
Be that as it may, Section 115 of the Civil Procedure
Code applies to cases, involving illegal assumption, non exercise or irregular
exercise of jurisdiction. It cannot be invoked against conclusions of law or fact,
which do ot, in any way, effect the jurisdiction
of this Court; no matter, however, erroneous, wrong or perverse, the decision
might be either on a question of fact or law, unless the decision involves a
matter of jurisidction. As erroneous conclusion
of law or fact is liable to be corrected in appeal, but revision will not be
competent on such a ground, unless in arriving at such conclusion, an error
of law is manifestly shown to have been committed.
10. Neither
any such aspect has been put forth or highlighted, nor is seemingly available, so as, to attract or entail
provisions of Section 115 Civil Procedure
Code, which thus, can, neither, come into play nor pressed into service. Judgments and decrees, now sought to be
impeached and set at naught are accordingly, unexceptionable as the same
neither appear to suffer from any infirmity or any irregularity, what to speak of
material irregularity, nor perversity or arbitrariness.
11. Hence viewed from any angle,
revision petition merits dismissal , and is, hereby
dismissed, with no order as to costs.
(B.T.) Petition dismissed.
