1988 PLP 852 (MLD)

This is a revision application filed by Abdul Rehman, appellant, under Order 47, rule 7 read with section 114, Cr.P.C. for review of the order of this Court dated 23‑5‑1982 passed in Writ Petition No. 479 of 1981 re: Muhammad Ibrahim v. Muhammad Akbar etc.

2. In the present review application Muhammad Ibrahim and Muhammad Akbar are arrayed respondents Nos. 1 and 2 respectively, and will be referred as such.

3. The brief facts of the case are that on 15‑2‑1978 Muhammad Ibrahim, respondent No.1, sold truck No. RIC‑9905 to Muhammad Akbar, respondent No.2, for a sum of Rs. 1,25,000 out of which Rs. 25,000 was paid in cash and it was agreed that the remaining amount would be paid in four monthly instalments of Rs. 5,000 each and the balance instalments at Rs. 3,500 per mensem beginning from August 1978. The dispute having arisen between the parties over payment of the price, Muhammad Akbar, respondent No. 2, filed a suit for permanent injunction against Muhammad Ibrahim. respondent No. 1, to the effect that the respondent be permanently restrained from taking possession of the truck in dispute. During the pendency of the suit, a compromise was arrived at between the parties and Civil Court passed a decree according to the statements of the parties on 18‑9‑1978 in favour of respondent No. 2 to the effect that respondent No. 1 would not take possession of the truck illegally or forcibly and that Muhammad Akbar, respondent No. 2, was liable to pay Rs. 94,000 as the remaining price of the truck to Muhammad Ibrahim, respondent No. 1, out of which Muhammad Akbar, respondent No. 2, paid Rs. 5,000 to Muhammad Ibrahim, respondent No. 1, and it was agreed that Muhammad Akbar, respondent No. 2, would pay in future the balance amount in monthly instalments of Rs. 3,500 regularly by the 15th of each month through a cheque and if he failed to pay any two instalments, then in that case Muhammad Ibrahim, respondent No. 1, would be entitled to recover the said two instalments of Rs. 7,000 alongwith liquidated damages of Rs. 5,000 through Court by execution. It was also agreed that if Muhammad Akbar, respondent No. 2, failed to pay any four instalments to Muhammad Ibrahim, respondent No.1, then the latter would be entitled to take possession of the truck in question and that if the balance price was paid in full, Muhammad Ibrahim, respondent No. 1, would give a transfer letter to Muhammad Akbar, respondent No. 2, transferring the ownership of the truck to him. As Muhammad Akbar, respondent No. 2, failed to pay two instalments of Rs. 3,500 each to Muhammad Ibrahim, respondent No. 1, the latter filed an execution petition for the recovery of the said two instalments (Rs. 7,000) together with damages of Rs. 5,

000. Muhammad Ibrahim respondent No.1, got the truck attached in execution of the said decree. Muhammad Akbar, respondent No.2, filed an objection in which he inter alia urged that he had tried to pay the instalments, but they were refused by Muhammad Ibrahim, respondent No.

1. On 28‑12‑1978 the objection petition was dismissed by the executing Court. Muhammad Akbar, respondent No. 2, then preferred an appeal against that order, which was dismissed by an Additional District Judge of Sahiwal on 24‑4 1980. Thereafter, Muhammad Akbar, respondent No. 2, filed a revision petition to the High Court, whereupon it was ordered that Muhammad Akbar, respondent No 2, should deposit Rs. 12,000 in the executing Court on or before 24‑5‑1980 and if the same was so deposited, the truck will not be auctioned pending the disposal of the revision petition. Ultimately, this revision petition was dismissed on 27‑10‑1980. The case was then again taken by the executing Court which ordered attachment of the truck. Muhammad Akbar, respondent No. 2, filed a revision petition against the said order which was accepted by an Additional District Judge of Sahiwal on 24‑4‑1981 on the ground that as Rs. 12,000 has been paid, the truck could not be attached and that under the terms of the compromise, unless they were four running monthly instalments due, the truck could not be taken by the vendee. After the said order, Muhammad Akbar, respondent No. 2, defaulted in paying four running monthly instalments. Muhammad Ibrahim, respondent No. 1, filed another execution petition for the attachment and delivery of the truck to him. Muhammad Ibrahim respondent No.1, also filed W.P. 477 of 1981 against Muhammad Akbar, respondent No.2, and the Additional District Judge, Sahiwal, calling in question the order of the Additional District Judge Sahiwal, dated 25‑4‑1981. During the pendency of the said petition, Muhammad Akbar respondent No.2 sold the disputed truck to Abdul Rehman, the present petitioner. Accordingly, he was also impleaded in the said writ petition. On 23‑5‑1982 learned counsel for Abdul Rehman, petitioner, and Muhammad Ibrahim and Muhammad Akbar respondents Nos. 1 and 2, appeared before me and agreed to a compromise, which was recorded as follows: "Mr. Muhammad Sultan Alam, Advocate for the petitioner. Mr. Pervaiz Akhtar, Advocate, for respondent No.

1. Nemo for respondent No.

2. Learned counsel for both the opposing parties agree that the order of the learned District Judge, Sahiwal, dated 25‑4‑1981, granting the possession of the truck to respondent No. 1 was in connection with the defaults of two instalments of Rs. 3,5(1!) per mensem with a penalty of Rs. 5,000 (as stated in para. 2 (b) 11 of the writ petition), which were then due under the first execution application and that, therefore, in case in any further execution application lodged before the executing Court. the said Court comes to the finding that further defaults have been committed, the said truck can be reattached in respect of the said further defaults. In view of this admitted position between the parties, learned counsel for the petitioner does not desire to press this petition, which stands disposed of in terms of the agreement arrived at by the parties above. The parties are left to bear their own costs."

4. Abdul Rehman, petitioner, has now filed the present review application (R.A. No. 1 of 1983) against the above compromise order which is now before me for disposal.

5. This review application came up before the learned Acting Chief Justice on 4‑5‑1983, after notice to the parties, at the principal Seat at Lahore. By order dated 4‑5‑1983, the learned Acting Chief Justice directed the parties to appear before me at Rawalpindi Bench on 13‑6‑1983 and directed me to dispose of m, same. Mr. Rafique Ahmad Bangush, Advocate appear, with Abdul Rehman petitioner. Muhammad Ibrahim, respondent No. 1, appears in person. No‑body appears for Muhammad Akbar, respondent No.2.

6. Learned counsel for the petitioner submits that Ahdul Rahman petitioner, being a transferee for valuable consideration, his right stands affected by the compromise, which was effected by his counsel Mr. Pervair Akhtar, Advocate, without his permission. Learned counsel further submits that the petitioner having paid the full price to Muhammad Akbar, respondent No. 2, his rights could not he compromised by his counsel. The learned counsel, therefore, prays that this review application be accepted and that the main writ petition be 'ordered' to be decided on the merits.

7. On behalf of Muhammad Ibrahim, respondent No.1, it is contended that the counsel for the petitioner had the authority to enter into the compromise on his behalf and that therefore. the compromise cannot he reviewed. He further submits that even assuming that the petitioner bought the truck from Muhammad Akbar, respondent No. 2, he bought it subject to the rights and liabilities that attached to it as a result of the compromise which was effected between respondents Nos. I and 2 in the Court on 18‑11‑1980, and that the petitioner cannot be absolved from his obligation on any legal or equitable ground.

8. I have given my anxious considers; ion to this case. I recollect this case clearly. Mr. Pervaiz Akhtar, Advocate, who appeared for Abdul Rahman, the; present petitioner, on the date of compromise i.e., 23‑5‑1982,himself took a leading part in arriving at the compromise terms with Mr. Bultan Ahmad, Advocate for Muhammad Ibrahim, respondent No.1. The petitioner, in para.5 (iv) of his review petition, himself admits that he was present in the Court on 23‑5‑1982 when the order under review was passed. His presence. therefore by mistake, was not marked by me in my order, though I recorded the presence of his counsel. Mr. Pervaiz Akhtar, Advocate. The petitioner contends that he had' not instructed his counsel to enter into any compromise of the nature, as he did, argued to the said arrangement. The power of attorney given by Abdul Rahman, petitioner, to Mr. Pervaiz Akhtar, Advocate, which appears on the file of the writ petition, clearly shows that he had authority to make statements on behalf of his client and to bind his client by entering into a compromise. In these circumstances, it cannot be said, considering that Abdul Rahman, petitioner himself was present on the date of compromise, that he had not, instructed his counsel, his counsel had authority to bind him by virtue of the power vested in him under his power of attorney. The petitioner has not pleaded that Mr.Pervaiz Akhtar, Advocate, committed any fraud against him, which fact is significant. The petitioner is, therefore, bound by the compromise. There is also no legal bar to a writ petition being disposed of on the basis of a compromise, arrived at between the parties.

9. The grounds on which a review is permissible, as are provided under Order XLVII, rule 1, C.P.C., have neither been pleaded in the review petition nor otherwise, exist.

10. In these circumstances, no case for review is made out.

11. For the foregoing reasons, this review petition is dismissed. M.Y.H./43; L Petition dismissed.