2001 CLC30 (PLP)

Ch. Muhammad Muzammil Khan for Appellants. Nemo for Respondent No.

1. Date of hearing: 31st March, 2000. Suit filed by Saeed Ahmad and three others for the possession of their share in the suit‑land was disposed of by the learned Civil Judge, Kasur on the basis of compromise, dated 22‑3‑1968 and the decree was passed accordingly. Allah Ditta and Sannatta who were defendants in the suit filed an appeal thereagainst, which was dismissed by a learned Additional District Judge, Lahore (Camp at Kasur) on 26‑6‑1969 that the appeal was not competent under section 96(3), C.P.C. This is second appeal by them.

2. It is contended by the learned counsel for the appellants that the view of the learned lower Appellate Court that the appeal was not competent under section 96(3), C.P.C. is erroneous in law inasmuch as when proper procedure for recording of a compromise in terms of Order XXIII, C.P.C. is not followed, the same can be challenged in appeal. The further contention of the learned counsel for the appellants is that some of the defendants in the suit were minors who were not duly represented before the learned trial Court, therefore, the compromise was illegal and bad in law. It is further contended that the appellants were illiterate persons and had no proper opportunity of understanding the import of the compromise, which adversely affected their rights. He has placed reliance on Muhammad Ismail v. Muhammad Ashraf reported as PLD 1982 Lah. 197, Muhammad Sadiq Gondal v. Additional District Judge and others reported as 1986 CLC 326, Moulvi Zahir‑ul‑Said Alvi v. Rai Sahib Seth Lachhmi Narayan reported as AIR 1931 PC 107.

3. The fact that the matter was settled through compromise between the parties is not disputed. Some faults in the procedure followed in recording the said compromise are being canvassed to get out of the said compromise. Undisputedly, both the appellants were represented by their learned counsel, whose statements were also recorded by the learned trial Court, before deciding the matter on the basis of compromise. It is also an admitted fact that none else other than the two appellants challenged the compromise by filing appeal. The matter was not even agitated before the learned trial Court itself, which recorded the compromise.

4. A perusal of the grounds of appeal before the learned lower Appellate Court shows that recording of the statements of the appellants and of their learned counsel by the learned trial Court was admitted. What was agitated before the learned lower Appellate Court .was that the statements of other defendants were not recorded. It is, however, a matter of record that none of those defendants or the minors, who were represented by the guardian ad litem before the learned trial Court had challenged the compromise. It has also been noted by the learned lower Appellate Court that they were merely pro forma defendants, whose share was not in dispute and were not even necessary parties. The minors at that time, have admittedly become major now and they have not challenged the said compromise at any stage. The appellants who had accepted the compromise, made their statements in the presence of their learned counsel, cannot take the advantage of non‑representation of the other parties, who have not even chosen to challenge the said compromise. If at all any of them could challenge the compromise, it were the persons concerned alone and not the appellants. The attempt of the appellants to challenge the compromise is an afterthought whose appeal was rightly dismissed by the learned lower Appellate Court.

5. The precedents relied upon by the learned counsel are not apt in the circumstances of the present case. Undoubtedly, if there was no consent of a party to the compromise, or was not party to the case, appeal could be filed. The judgment which is more appropriately attracted to the facts of the case is Sajjad Hussain v. Musarat Hussain Shah and others reported as 1989 SCMR 1826, where it was held that a decree on the basis of a compromise, could not be appealed against in view of section 96(3), C.P.C. This judgment was affirmed by their Lordships by dismissing review petition i.e. Muhammad Hussain Shah and others v. Sajjad Hussain and another reported as 1989 SCMR 1752. In this view of matter, the contentions of the learned counsel have no substance and are repelled.

6. For the reasons stated above, this appeal has no merit and the same is dismissed accordingly with no order as to costs. H.B.T./A‑61/L Appeal dismissed.