2009 PLP 1621 (YLR)

SYED SHAHEEN MASUD RIZVI, J.

Briefly, stated the facts giving rise to the present petition are that respondent No.3 filed a suit for pre-emption and permanent injunction against the petitioner with respect to a plot measuring 10 Marlas bearing Khewat No.55, Khatoni No.165, Khasra No.88 situated in Gunjshakar Colony, Sahiwal. The petitioner filed the written statement and contested the claim of the respondent No.3. However, during, the proceedings before the learned trial Court on 30-10-2004 the counsel for the parties on 30-10-2004 stated that the parties have entered, into compromise and on the' next date of hearing they will get their statements recorded and requested for some time. The case was thus adjourned to 25-11-2004. As the learned Presiding Officer was on leave the statements were not recorded and the case was adjourned to 27-11-2004. As on the said date learned counsel for the petitioner/respondent was not available, therefore, the statement was recorded on 29-11-2004. The order dated 29-11-2004 reads as under: However, the determination of the price could not be made till 15-12-2004 and on the said date the case was adjourned to 11-1-2005 on which date the respondent No.3/plaintiff filed an application under Order XV Rule 1 and Order XXIII Rule 3 read with section 151, C.P.C. As per the contents of the said application respondent No.3/plaintiff admitted the amount of Rs.3,30,000 as per the registry documents and as alleged by the petitioner. The petitioner/ respondent asked for a time to 'file reply to the said application and the application was finally taken up on 1-3-2005 by the learned trial Court on which date the petitioner/defendant engaged another counsel, who filed a fresh power of attorney and requested for an adjournment for the submission of the written reply to the said application moved by the respondent/plaintiff. The said application was contested by the petitioner/respondent wherein the petitioner/respondent resiled from his earlier statement made before the Court regarding the acceptance of the claim of the respondents/plaintiffs wherein it was clearly stated by the present petitioners that he has handed over the possession of the said plot to the petitioner, which fact reflects in the order dated 29-11-2004 referred to above and the learned trial Court vide its order dated 25-4-2005 dismissed the application of the respondent/plaintiff for the reason that it was not a valid compromise, as the petitioner/defendant has failed to accept the same and further held that the case will be adjudged on merits against which order the respondent No.3/plaintiff filed a revision petition, which was decided by the learned Additional District Judge, Sahiwal vide its judgment dated 27-11-2008 whereby the order, dated 25-4-2005 of the learned trial Court was set aside and it was held that the petitioner/respondent under the law cannot be allowed to take a plea inconsistent with the plea taken earlier and the admission once made by the parties before the Court cannot be revoked without leave of the Court and thus as to the determination of the price the case was remanded to the learned trial Court so as to frame an issue in this regard and after recording the evidence of the parties to decide the matter accordingly. Being aggrieved by the above said order the petitioner has assailed the same through the instant petition.

2. Arguments heard. Record perused.

3. Learned counsel for the petitioner has argued the case on the merits and has referred to the judgments reported as under: -- (i) 1991 CLC 1341 Lahore, Haji Atta Muhammad v. Abdul Rasheed, (ii) 1976 MLD 1395 (Peshawar), Muhammad Ayub and another v. Muhammad Yusuf, and (iii) 1993 SCMR 376, Umar Bakhsh and 2 others v. Azam Khan and 12 others.

4. The perusal of the above said judgments reveals that the same are distinguishable as for the facts of the instant petition are concerned.

5. Learned counsel for the respondent has vehemently opposed this petition, as for its maintainability is concerned and hag relied on the judgment reported in 2005 MLD 67 (Lahore) Khan Muhammad v. Khizar Hayat and others and PLD 1985 SC 131 Noor Muhammad v. Sarwar Khan and 2 others.

6. Apart from the objection as to the maintainability of the present petition is concerned the case was looked into on merits as well. The perusal of record reveals that the petitioner in the presence of his counsel has very consciously made the statements as to the compromise entered between him and the respondent and in this regard the reference can be made to the orders dated 30-10-2004, 27-11-2004 and 29-11-2004. That on 29-11-2004 in the presence of his counsel he made a very categorical statement before the Court that possession of the plot has been handed over to the respondent and only the price of the plot is to be determined. The statement is signed by the petitioner as well as his counsel, thus, there is nothing wrong with the order dated 27-11-2008 of the learned Additional District Judge, Sahiwal. Moreover, the matter has been remanded to the learned trial Court wherein the petitioner will be having full opportunity to plead his case and yet against the final judgment of the learned trial Court, he has an opportunity of filing an appeal before the Court of competent jurisdiction. Moreover, the constitutional jurisdiction cannot be assailed as an alternative of an appeal or revision under the Civil Procedure Code. The writ can be issued only within the ambit of Article 199 of the "Constitution of Islamic Republic of Pakistan, which does not stand attracted to the circumstances of the instant case. As such the petition, being devoid of any merits is dismissed. S.A.K./M-164/K Petition dismissed.