1990 PLP 1614 (CLC)

‑‑‑‑OXXIII, R.3 & S 115‑‑‑Revisional jurisdiction, exercise of‑‑‑Compromise between parties‑‑‑Trial Court failing to give decision on veracity or otherwise of compromise‑‑‑Effect‑‑‑Court had examined witnesses of compromise as Court witnesses who had only deposed to the failure of compromise‑‑‑No evidence had been led as to the merits of the case‑‑‑Court having failed to exercise jurisdiction to give decision on the varacity or otherwise of the compromise, vested in it by law, judgment and decree of both the Courts were set aside and case was remanded to Trial Court to record finding regarding compromise and if same was found to be genuine, lawful and effective, to decide the case on its basis; In case compromise could not be adopted for decision, then to allow parties to produce evidence on merits of the case and to decide the same in accordance with law.‑‑ [Compromise]. Qazi Abdur Rashid for Petitioner. Qazi Shamshud Din for Respondents. Date of hearing: 14th March, 1990. The petitioner feels aggrieved of the decision of the Courts below as her suit for declaration was dismissed by the original Court, which decree was approved in appeal.

2. The contents of the plaint are that the property in suit was earlier owned by defendant No.l which was mortgaged by him to defendant No.

3. It was alleged that about five years back the equity of redemption of this land was sold to the plaintiff. However, defendant No.1 refused to abide by the oral transaction between him and the plaintiff and instead sold the property to defendant No.2 by sale‑deed dated 24-12‑1978. In this context it was prayed that the plaintiff be declared as owner in possession of the property in question and the sale‑deed on behalf of defendant No.1 in favour of defendant No.2 be held as illegal and ineffective over her rights. In the written statement of defendants 1 and 2, the correction of averments in the plaint relating to the sale in favour of the plaintiff was described as false and the sale mutation in favour of defendant No.2 was admitted as correct. It appears from the record that during the proceedings the parties entered into a certain compromise and, therefore, the plaintiffs submitted an application to the trial Court on 19‑5‑1980' for verification of the compromise which compromise was submitted alongwith the application. As the next date in the case was fixed as 25‑5‑1980, therefore, the Court fixed the compromise for consideration on that date. The parties then differed over the terms of the compromise and as such the plaintiff applied for summoning the witnesses of the compromise as additional witnesses which was accepted on 15‑9‑1980. Thereafter the witnesses of the compromise were summoned and examined as C.Ws. and their statements reveal that they had only testified to the compromise and had said nothing about the merits of the case. Similarly, Gul Mohammad Khan attorney of the plaintiff also appeared as C.W. 5, who made statement only regarding the compromise and did not depose in respect of the contents of the plaint and merits of the case. The defendant examined his attorney as D.W.1, who made statement regarding the compromise as well as the merits of the case.

3. The learned trial judge dismissed the suit, as according to him there was no evidence to support the allegations in the plaint and the compromise was kept out of consideration without discussing its genuineness or otherwise in these words, "The plaintiff has stressed upon the alleged compromise deed, and has shown all the preponderance of evidence to this side to prove the existence of compromise, as the existence of compromise is not at issue before me. Hence I will not touch to its merits. Civil Courts are to attest only those compromises which are admitted by the parties in open Court and the admission too should be when the parties are made to understand the terms of the compromise. In my view much of the time has already been wasted on this controversy, for no good use to the present suit. However, if any party has a right under the compromise, he should seek his remedy in another suit in a competent Court of law. The learned appellate Court dismissed the appeal on merits and made no mention of the compromise.

4. The learned counsel representing the petitioner submitted that the trial Court took cognizance of the compromise, called for the evidence in respect of the compromise, and recorded the statements regarding the compromise, therefore, it was bound to have recorded its finding either way in terms of Order XXIII Rule

3. According to the learned counsel the order recording or refusing to record a compromise is appealable under Order XLIII, Rule 1 Clause (m) and, therefore, the provisions of Order XXIII, Rule 3 have been flouted. He also complained of not affording his client an opportunity to lead evidence on merits after excluding the compromise from consideration. The learned counsel arguing for the respondent referred to the application at page 34 of the file and submitted that this was an application for inclusion of the names of the witnesses to the compromise in the list of witnesses and not for proving the compromise. According to him, when the witnesses of the compromise were examined, the plaintiff closed his evidence in the Court and the Court had never disallowed him examining witnesses on‑ merits of the case. Moreover, he submitted that the plaintiff failed to ask for an issue on the compromise. He, therefore, defended the impugned judgment as legal and correct. 5. 1 perused the record in the light of the arguments addressed at the bar.

6. There are two applications on the record appearing at pages 30 and 33, whereby the plaintiff/petitioner requested the Court to verify the compromise arrived at between the parties. There is yet another application at page 34 with a prayer that the names of the witnesses of the compromise should be included in the list of witnesses and the plaintiff be allowed to produce them and after recording the statements, the suit should be decreed in favour of the plaintiff. The Court accepted the later application by order 'dated 15‑9‑1980, and in fact examined the witnesses to the compromise as C.Ws. However, it is curious that in spite of all this exercise the learned trial Court did not consider it legal to give ally finding on the compromise either way and instead rejected it on erroneous reasons as reproduced above. Under Order XXIII, Rule 3 if it is proved to the satisfaction of the Court that the suit has been compromised, then it shall order such compromise to be recorded. This is not a mere formality but it is a 113 mandatory provision of law, as such an order has been made appealable in terms of Order XLIII, Rule 1 Clause (m) which reads, "(m) an order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction". The learned trial Court has, therefore, failed to exercise jurisdiction because of his failure to give any decision on the veracity or otherwise of the compromise as under the law he was obliged to do so. The observation of the learned trial Judge that any party who has a right under the compromise can file a separate suit is also not correct because according to the admission of trial Court itself much time was wasted over the controversy of the compromise then it will, therefore, be harmful to the parties both in time and money to undergo a second round of litigation and specially so when the entire evidence to determine the genuineness of the compromise has been recorded and only a finding was to be given about it. It also appears that the parties have been misled in matter of producing evidence, as the trial Court had examined witnesses of compromise as C.Ws. who have only deposed to the factum of compromise and therefore, no evidence has been led as far as the merits of the case are concerned.

7. This revision is, therefore, accepted, the judgment and decree of both the learned Courts are set aside and the case is remanded to the trial Court to record finding regarding the compromise and if it is found lawful, genuine and effective to decide the case on its basis otherwise in case the compromise cannot be adoeted for decision then to allow the parties to produce evidence on merits of the case and to decide it in accordance with law. Parties will bear their own costs. AA./1026/P Case remanded.