P L D 1969 Lahore 365 (PLP)

MUHAMMAD AFZAL ZLULLAH, J.‑House No. 43, Street No. 52, Krishan Nagar, Lahore, was transferred to Habib All (respondent No. 1) by the Deputy Settlement Commissioner, on the basis that he was a claimant‑allottee in possession while the other applicant, namely, Abdul Wahab (predecessor‑in- interest of the appellants) was not in possession and claimed the transfer only through the allotment of one room in the house in favour of his non‑claimant son Abdul Jabbar. This order was confirmed in appeal but was reversed in revision filed by Abdul Wahab. It appears that before the decision of the revision petition, the claim of Habib Ali respondent had been rejected. The Settlement Commissioner found it as a fact that Abdul Wahab was not in possession and was claiming the transfer through his non‑claimant son. However, he transferred the house in favour of Abdul Wahab because he was a claimant while Habib Ali respondent was a non‑claimant. A second revision petition filed by Habib Ali was dismissed on the same reasoning which had found favour with the Settlement Commissioner. A review application by Habib Ali met the same fate. Therefore, Habib Ali filed Writ Petition No. 641/R of 1963, which came up before our learned brother K. E. Chauhan, J., who decided the same by means of a consent order, dated 3rd May 1968. He directed an exact equal division of the house in favour of both the parties, on the basis of statements made by them before the learned Judge on the same day; and directed the Deputy Settlement Commissioner to implement the agreement between the parties. It may be mentioned here that Abdul Wahab (respondent in the writ petition) died during the pendency thereof. An application for bringing the legal representatives of Abdul Wahab on record was filed on 26th May 1964. In this application, one of the sons of Abdul Wahab named Abdul Majrd is mentioned as minor aged 7 years "under the guardianship of mother (Khadija Begum)". Mst. Khadija Begum was also mentioned as one of the legal representatives. By the order, dated 1st June 1964, Mr. Justice Anwar‑ul‑Haq passed the following order on that application :‑ "The application is allowed subject to all just exceptions." It appears that Mst. Khadija Begum continued representing Abdul Majid during the pendency and up to the decision of the writ petition, and nobody ever raised any objection in this behalf.

2. In this Letters Patent Appeal, the successors‑in‑interest of Abdul Wahab have challenged the order passed by the learned Single Judge in the writ petition. Ch. Muhammad Anwar Buttar, the learned counsel for the appellants, has raised the following contentions‑ (i) that the writ petition could not be decided on the basis of compromise between the parties; (ii) that Abdul Majid, the minor was neither properly served nor properly represented before the High Court, and in any case the compromise could not he said to be for his benefit; and (iii) that the learned Single Judge could not have passed an order of division of the house and that the proper course for him was to remand the case to the Settlement authorities.

3. In order to appreciate and decide the point raised by the learned counsel, in respect of the manner of decision of the writ petition, it is necessary to state as to how the situation for a consent order developed before the learned Single Judge. It appears from the proceedings recorded on 3rd May 1968, which form part of the order passed by the learned Single Judge, that after dictating the facts of the case the learned Judge proceeded, in paragraph No. 3, to decide the question of the possession of the house. From the tenor of paragraph No. 3 of the order, it appears, that the learned Single Judge had almost decided this question against the present appellants; the result of which would have been that they would have lost the whole house. At that stage, the parties desired to make statements. In fulfilment of this desire, the learned Single Judge recorded the statement of Habib Ali, the petitioner in the writ petition (now respondent) and also the statement of Syed Abdul Rashid son of Abdul Wahab who was acting as attorney of all the present appellants. The statement made by Syed Abdul Rashid is very significant and important for the decision of this appeal; therefore, it is reproduced in full:‑ "I am the special attorney of the person mentioned above 1 possess a special power‑of‑attorney which has been filed in this Court in original. I have full authority to make statement in this case. I have heard the statement of Syed Habib Ali petitioner. I accept the same on my behalf as well as on behalf of my principals. The portion which is to be carved out oar the; line of sketch A.G.D.E. will be taken by the petitioner while the other portion on the line of the sketch B. C. D. F. will be retained by us whichever party at any stage wishes to sell its portion, the opposite‑party will have a first choice. Let the writ petition be accepted in these terms. The settlement which I am accepting is in the interest of my principals as well as my own self. My other brother Abdul Jabbar is also present in Court. He also accepts this arrangement, I have taken independent legal advice as well in this matter." Abdul Jabbar made an independent statement confirming the position taken by Abdul Rashid. It was after the recording of the statements that the learned Single Judge passed the order directing the D. S. C. to implement the agreement.

4. The real question which falls for determination in this appeal is whether the appeal of a party who consented to an agreed order can succeed or for that matter can be entertained. It is a fact that the tenor of order shows that the learned Single Judge was going to decide the writ petition against the present appellants. It is significant to note that in paragraph No. 3(b) of the grounds of this appeal, it is stated that the compromise was effected because it transpired during the arguments (before the learned Single Judge) that the decision might be adverse to the present appellants. The last sentence of the statement made by Abdul Rashid shows that the settlement was agreed upon by the present appellants after taking independent legal advice. This averment read with the, circumstance mentioned in the grounds of appeal shows that the compromise was well considered and it was effected after the appellants realised that the dectsroil was going against them, i.e., they might have lost house. Having realised this, they agreed to a settlement in which they got half the house. The learned counsel for the appellants frankly conceded the correctness of this analysis of the circumstances of the case and stated that this very analysis he had incorporated in paragraph No. 3(b) of the grounds of present appeal. It is true that the provisions of the Civil Procedure Code, in terms, do not apply to the proceedings of the High Court in exercise of its writ jurisdiction, yet some of the principles contained therein have generally been applied to those proceedings, whenever the occasion arose. One of such principles is that a party after having consented to an agreed decision, cannot appeal against the same. This is contained in subsection (3) of section 96 of Civil Procedure Code. The Judicial Committee has followed this principle consistently and so have the Courts of Indo‑Pakistan Sub‑continent. In the case of Zahirul‑Said Alvi v. Lachhmi Narayan (A I R 1932 P C 251), their Lordships of the Privy Council refused to entertain an appeal to His Majesty because the Court in India (Judicial Commissioner) had proceeded entirely upon the consent of the parties. In Ramehandra Deo Garu v. Chaitana Sahu and others (A I R 1920 P C 139); Their Lordships gave effect to a judg ment by consent, in spite of the fact that the claim of the plaintiff was barred by limitation.

5. Apart from the technical bar in respect of appeal against decision based on consent, the party challenging such a decision cannot be allowed to argue that the Court passing the order did not follow the correct procedure in deciding the matter. The principle of estoppel by conduct applies with full force to such a situation. If a party, by its conduct, obliges the Court to adopt a course which is contrary to its practice, that party will be debarred from raising the objection as to the procedure, on the very salutary principle that after having led the Court to do a certain thing for the benefit of the parties, none of them can be allowed to challenge the same. The Mardas High Court, in a pre‑Partition case, 'namely, S. E. Makudam Muhammad v. T. v. Muhammad Sheikh Abdul Kadir and another (A I R 1936 Mad. 856), has dealt with this question. In that case the defendant had requested the Court to decree the suit in favour of the plaintiff if a certain thing happened, namely, if the key that was produced by him did not fit the lock. The Court did what it was asked to do by the defendant and it was found that the key did not fit the lock. The question arose whether the defendant could resile from what he had stated before in the Court. The following observation made in this connection is very relevant in this appeal : ‑ "When a party invites the Court to adopt a procedure which is not contemplated by the Civil P. C., and is in fact a procedure extra cursum curiue, he cannot turn round and say that the Court is to blame for adopting the very procedure 'which he invited the Court to follow. There is such a thing as estoppel apart from the question of adjustment and the doctrine of estoppel would apply to a party who attempts to blow hot and cold in this fashion. As was held in 1896 A C 136, where with the acquiescence of the parties the Judge departed from the ordinary course of procedure and decided upon a question of fact, it was incompetent for the parties afterwards to contend that they have an alternative mode of proceeding with the trial as if it had been heard in due course. Lord Watson observed in that case that there were several decisions of the House of Lords which confirmed. That the judgment of the Court below pronounced extra cursum curiae, is in the nature of an arbiter's award and that as a general rule at least no appeal from it will lie." Following this principle, effect was given to the consent decree passed by the lower Court. A similar question arose in Gopal Madhorao Deshpande v. Achut Sadasheo Deshpande (A I R 1941 Nag. 271). On the basis of a decision of Calcutta High Court, it was argued that a consent decree did not come within the rule of res judicata. The following observation in the Nagpur case is relevant :‑ "In 1867 L R 1 H L Sc. 117 the House of Lords entertained no doubt that a compromise decree would be as much binding on the actual parties to it and their privies‑in‑interest as if a judgment had been arrived at after the case had been fought out. In (1895) 1 Ch. D 37 the Official Receiver who was the successor‑in‑interest of the South American & Mexican Co. was not allowed to reagitate a question which had been settled by a consent decree. In 13 M I A 497 it was held by the Privy Council that when a state of facts is accepted as the basis of a compromise whereby a suit pending decision is amicably adjusted and when the compromise is not vitiated by fraud, those who were parties to it and their privies should not afterwards be heard to say for the purpose of reviving the controversy that the real state of things was otherwise. The same view was expressed in 36 Bom.

283. In A I R 1926 Cal. 672 it is true that a Division Bench of the High Court expressed the view that a consent decree did not come within the rule of res judicata but it held that a consent decree raised an estoppel as much as a decree passed in vitum and it held that the consent decree which was before it was binding as between the consenting parties and their successors in interest. That case therefore also supports the contention of non‑applicant. The law on the subject can be said to be sufficiently clear that the applicant‑defendant is estopped from raising the pleas which were raised in the former suit by his predecessor‑in‑interest and which were settled by consent." The decision in Ganga Ram and others v. dagu and another (A I R 1934 Lah. 176(2)), which will be presently cited in connection with another contention of the learned counsel, also supports the view that a consent decree is not open to appeal on the same principles as explained above. Many rulings can be cited on this point. It appears to be a settled position of law that, as observed earlier, a party which leads the Court to deviate from the normal l procedures, is normally estopped from challenging the order passed by the Court on the consent of such a party. Therefore, we are of the view that the appellants cannot challenge, in Letters Patent Appeal, the order of the learned Single Judge which was passed on their request and consent, and thus this appeal merits to be dismissed on this short ground.

6. In view of our decision on the question of consent order and the principle of estoppel working against the present appellants, it is not necessary to examine in detail, the technical contention raised by the learned counsel that a writ petition under Article 98 could not be decided on the basis of a compromise. However, we may observe that there are many instances where the writ petitions were decided in pursuance of settlement between the parties; and in one case their Lordships of the Supreme Court remanded the matter to the High Court practically for the implementation of a compromise arrived at between the parties during proceedings in a writ petition. The case is Sh. Maqbool Elahi and others v. Khan Abdul Rehman and others (P L D 1958 S C (Pak.) 96). The matter related to the removal and appointment of rival Directors and the Secretary of West Punjab Steel Corporation Limited. One group of Directors filed a writ petition. The parties agreed to an adjustment which was in the form of an agreement signed by the parties and their Counsel and was put in the Court. One of the parties, i.e. the petitioners in the High Court subsequently filed an application for the clarification of a certain point in the agreement. This application was rejected by the High Court as being an afterthought. Thereupon, the same party filed another applica tion on the same day seeking permission to resile from the compromise. On this application the High Court dismissed the writ petition in the following words: "In view of the attitude taken up by the petitioners, we refuse to proceed further with his main writ petition and we dismiss it accordingly with costs." The matter came up before the Supreme Court. Though their Lordships made it clear that they should not be taken to have given approval or otherwise to the practice of disposal of writ petitions by method of executory compromise, the following observations lend support to the view we have taken:‑ "But once the mode had been adopted and the learned Judges were firm in their intention that the compromise should be implemented we consider that a clarification of the meaning of an ambiguous term of the agreement could reasonably be sought by an affected party. So far from such a move being regarded as an attempt to frustrate the agreement, it should be interpreted as a step in aid of securing proper and more expeditious implementation of the compromise." Their Lordships held that the High Court should have clarified the compromise on the point raised in the first application, and remanded the case with the following observation:‑ "For these reasons we allow this petition and setting aside both orders of the 3rd October 1957, we direct that the case b returned to the High Court to deal with the first application of that date made by the petitioners after proper notice to the respondents and to proceed further with the matter with all possible expedition as required by law." In effect therefore, the Supreme Court remanded the case for the consideration of the High Court, on the basis of the compromise reached between the parties; and gave direction that the application sending classification of the compromise should be decided. The principle enunciated in this ruling supports our view that once a mode (procedure) is adopted by the High Court on the request of the parties, the decision given in pursuance of that mode should be given effect to necessary corollary of this rule will be that the same parties are estopped from subsequently challenging that mode of decision in an appeal. Therefore in this view of the matter as well, there is no force in this appeal and merits to be dismissed in limine.

7. There is no force in the second contention of the learned counsel relating to the representation of Abdul Majid minor before the High Court. As stated in the beginning paragraph of this judgment, the High Court had accepted the application (in its entirety) in respect of bringing on record the legal representatives of Abdul Wahab deceased. According to this application Abdul Majid minor was to be represented under the guardianship of his mother Mst. Khadija Begum who was also one of the parties. We have examined the record. Notices were issued to Abdul Majid and Mst. Khadija Begum simultaneously. The notice issued to Abdul Majid was in the following form:‑ "Abdul Majid s/o Abdul Wahab, aged 7 years minor under the guardianship of mother Khadija Begum, caste Syed, s/o village Madke Dhariwal, Tehsil Qasar, Distt. Lahore." On the same address, the notice was issued to Mst. Khadija Begum. Mst. Khadija Begum was served, and she in token of that service thumb‑marked on the reverse of the notice. The signatures of Abdul Majid minor were also obtained on the notice which particularly mentioned his name. Mst. Khadjia Begum appointed Abdul Rashid as the attorney. And it was in this capacity that Abdul Rashid in presence of his real brother Abdul Jabbar made the statement in respect of the compromise on 3rd May 1968, before the learned Single Judge, which statement has been quoted in paragraph No. 3 above. The learned counsel laid stress on the fact that signatures of Abdul Majid minor were obtained on the notice, but ignored the fact that Mst. Khadija, her, guardian, was also served with the notice on the same day at the same place. She appointed Abdul Rashid as attorney. He is her real brother. It shows that the minor was properly represented. It is significant to note that till the decision of the writ petition, nobody raised any objection in respect of the representation of the minor. On the contrary, Abdul Rashid while making the statement categorically stated that he was making the statement on behalf of all the present appellants and he did so on proper legal advice. The stress of the learned counsel on the fact that Abdul Majid minor signed the notice is misconceived. It appears that those signatures were obtained either by mistake or by way of abundant caution. We have noticed that the power‑of‑attorney given by the appellants in favour of the learned counsel himself was also signed by Abdul Majid minor. Therefore this fact does not make any difference so far as the proper representation of his minor is concerned. We have examined this question in another sense also, i.e. whether or not the interest of the minor was safeguarded before the learned Single Judge. We have already found it as a fact that apparently the decision of the learned Judge in the writ petition was going against the present appellants. If that had happened, the present appellants including the minor would have lost the whole house. This fact is admitted by the learned counsel in this appeal before us. In this view of the matter, if the attorney made the statement accepting the transfer of half the house, it was definitely for the benefit of the minor. Therefore, no objection on that score can be entertained in this appeal. It is true that no separate order was passed by the learned Single Judge in terms of Order XXXII, rule 7, C. P. C., but the failure to do so has, in no way, prejudiced the case of the minor. As observed in the earlier part of this judgment, the principles only of the Civil Procedure Code are applicable to the proceedings in writ jurisdiction. The principle contained in Order XXXII, rule 7, C. P. C., has been fully satisfied in so far as the interest of the minor is concerned. A similar question arose in Ganga Ram and others v. Jagu and another. During the pendency of a suit, the parties made an application to the Court requesting the Court to decide the case on local inspection and local enquiry. The Court did accordingly and decreed the suit in favour of the plaintiffs. The defendants appealed but failed. In the second appeal a contention was raised that some of the defendants were minors and that the Court had not given any formal sanction for the procedure, so far as they were concerned, as contemplated by Order XXXII, rule 7, C. P. C. Bhide, J. dealing with this question observed as follows :‑ "It appears, however, that the application, dated the 27th April 1932, was signed by the pleaders of the parties and the learned counsel admitted that they were duly authorised to compromise, make a reference to arbitration, and so forth. In the application, the fact that some of the defendants were minors was clearly stated, that it was also stated that the procedure suggested in the application was for their benefit. In the circumstances i t would be, I think, only reasonable to hold that the Court, when it adopted the procedure, approved of it in respect of the minors also." The above‑mentioned observation also applies with full force to the present case. We have already held that the interest of the minor has been fully safeguarded in the compromise before the learned Single Judge. Therefore, we find no force in the second contention of the learned counsel either.

8. Lastly, the learned counsel contended that the order of division could not be passed by the learned Single Judge. In view of our decision that the order passed by the learned Single Judge on the consent of the parties cannot now be challenged in Letters Patent Appeal, this contention loses all its force. However, we may observe that the learned Single Judge after having noted the compromise between the parties, directed the Deputy Settlement Commissioner to give effect to the compromise. In other words, the agreement of the parties as to the division of the house was passed on, by the learned Single Judge to the Deputy Settlement Commissioner, for implementa tion. Therefore, it cannot be said that the learned Single Judge himself passed the order of division. In fact, the division was agreed upon between the parties and had got to be implemented by the Settlement authorities in pursuance of the order of the learned Single Judge. Therefore, this contention of the learned counsel is also misconceived.

9. In view of what has been stated above, there is no force in this appeal. It is dismissed in limine. A. B. Appeal dismissed in limine.