2002 PLP 1788 (CLC)

8. With profound respects, we find the above contention to be patently misconceived. Order 3, rule 1, C.P.C. expressly stipulates as under:

Appearance, etc. may be in person, by recognized agent or by pleader.‑‑‑ Any appearance, application or act in or to any Court required or authorized by law ‑to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader (appearing. applying or acting, as the case may be) on his behalf; Provided that any such appearance shall, if the Court so directs, be made by the party in person."

9. Evidently if the expression "parties" is required to be so construed as to exclude Advocate/pleader there could be no reason why attorneys or other recognized agents should not be similarly excluded. Indeed when we put this question, Mr. Muzaffarul Haq had no answer as he was aware of the fact that a great part of the litigation was conducted not by the appellant herself, but her attorney.

10. Mr. Muzaffarul Haq, however, alternatively argued that it was essential that the duly recorded agreement between the parties themselves should have been present on record and the Court could pass a decree only on the basis of such agreement. In support of his contention he referred to a Division Bench judgment of the erstwhile West Pakistan High Court in Lal v. Siddique PLD 1961 Lah. 823 where at page 840 it was observed:‑‑ "(1) A consent decree passed by the Court on the basis of a proposal made by one party and concurred in or agreed to by the other. In other words, this is a decree which is not the result of an adjudication by the Court, but springs from the agreement or the concord of the parties themselves."

11. We have carefully gone through the above judgment and have found that there is nothing therein to warrant the conclusion sought to be drawn by learned counsel. In a pre‑emption suit filed by the appellant it was agreed that a decree for possession be granted to the appellant who would be liable to pay such amount to the respondent which the respondent stated to have spent on raising construction thereon upon oath on the Holy Qur'an. The suit was decreed by the trial Court but the decree was set aside by the First Appellate Court as having been passed in excess of its pecuniary jurisdiction. Upon a second appeal preferred by the plaintiff it was urged that the decree of the trial Court was a consent decree and was not, therefore, appealable. The following questions of law were referred to a Division Bench:‑‑ "(1) What is a consent decree? (2) Whether a decree passed under Order XXIII, rule 3, Civil Procedure Code, would be appealable if it is not preceded by an order recording the agreement, compromise or satisfaction? and (3) Whether a decree granted on the statement made on oath by a party to the suit or a witness to whom it is offered by the opposite‑party is a consent decree and, therefore, not appealable under section 96(3) of the Code of Civil Procedure?"

12. Evidently the question whether the consent of the parties emanated from a written instrument or whether it was recorded by the Court in their personal presence or in that of their authorized representative was never in issue. Nothing turns on the observation that a consent decree springs from a contract between the parties as there is no law requiring that a contract must invariably be made through a written instrument executed by the parties themselves and not their agents. Moreover, while recording their conclusion on the first question their Lordships after making the observations relied upon by Mr. Muzaffarul Haq and reproduced in para. 10 above observed:‑‑ "The true test for determining whether or not a decree should be regarded as a consent decree lies in ascertaining the real intention of the parties and not merely whether a particular procedure, for example the one embodied in Order XXIII, rule 3, C.P.C. has been observed." .

13. With respect to the second question their Lordships held that the omission to pass a separate order recording an agreement of compromise is curable under section 99, C.P.C. and a decree under Order XXIII, rule 3, C.P.C. does not cease to be a consent decree simply for the reason that it is riot preceded by an order recording the compromise of satisfaction and an appeal would not lie against such decree. However, an appeal would lie under Order 43, rule 1, C.P.C. against an order recording a compromise on the limited question whether an agreement or compromise was in fact arrived at between the parties.

14. In our humble view, therefore, the above judgment not supporting Mr. Muzaffarul Haq goes against him insofar as his technical objection regarding failure on the part of the learned Single Judge to record agreement between the parties is concerned. Learned counsel then referred to the pronouncement of the Honourable Supreme Court in Umer Bux and others v. Azeem Khan and others 1993 SCMR

374. In this case an application for compromise was presented before the Court, but when one of the parties alleged that a condition precedent had not been fulfilled and was found by their Lordships that the compromise was not based on any consideration they declined to give effect to it.

15. Mr. Muzaffarul Haq indeed seems to be right to the extent that a compromise after all 'is a contract and, therefore, its dispute stated to have been resolved in terms of a compromise (as distinguished from a complete withdrawal/waiver of claim), it must be shown that some consideration had passed between the parties as a contract without consideration would be void.

16. From the facts discussed above it is quite clear that though the appellant had agreed to sell her property and received a major part of the sale consideration there was some change of minds and vide agreement, dated 25‑3‑1997, the respondent agreed to receive refund of the purchase price together with compensation up to a particular date and upon certain conditions instead of enforcing the equity of specific performance in her favour. However, when the appellant before paying off the respondent attempted to dispose of the property, the latter filed a suit seeking payment within the agreed time and in the alternative claiming specific performance of the contract. The period during which payment was to be made had already expired and the respondent's suit could possibly be decreed merely upon payment of Rs.5,75,

000. In such circumstances a compromise was entered into whereby the appellant once again acquired some more time to pay off the respondent instead of parting with the property. Therefore, there could be no reason to infer that the compromise was premised on no consideration at all or that it was made against the interests of the appellant.

17. At the pointation of Mr. Arshad Tayebaly, learned counsel for the respondent, we have found from the record that C.M.A. No.2379 of 2001 was submitted before the trial Court seeking extension of time for depositing the amount ordered in the consent decree which is supported by the appellant's personal affidavit. She never questioned the authority of her counsel to compromise matter but categorically stated that she was making all possible efforts to arrange the amount ordered to be deposited. On the basis of the aforesaid representation she was even granted 15 days' time and it was only after expiry of the same that she took a complete summersault by replacing her counsel and claiming that the latter had no authority to enter the compromise.

18. Mr. Arshad Tayebaly has relied upon the pronouncement of the Honourable Supreme Court in Mst. Bashiran Bibi and others v. Jewni and others 1997 SCMR 1079, wherein Ajmal Mian, J. (as his Lordship then was) held as follows:‑‑‑

"Rana Abdul Rahim Khan, learned counsel for the petitioners, has not been able to show that Mr. Muhammad Younas Bhatti, learned counsel who appeared for the petitioners before the High Court, did not have the requisite power under his Vakalatnama to enter into the arrangement contained in the above‑quoted portion of the impugned order, nor he has been able to demonstrate that the above learned counsel had any motive to act without the instructions of the petitioners against their interest. The contention that the compromise should have been recorded in writing and the contents thereof should have been verified by the learned Judges of the Division Bench from the parties is also devoid of any force. Before the High Court if the learned counsel for the parties make a statement, the Court, as a matter of practice, accepts their statement without doubt as to the correctness or authenticity of the same."

19. From the above, we are quite clear that the conduct of the appellant has been most reprehensible. After having received and appropriated a huge amount of Rs.24,00,000 being about 75% of the sale consideration she is neither willing to refund the amount, nor pay any compensation, nor transfer the property to the respondent. She has only been attempting to avoid her obligations by taking contradictory pleas through frivolous litigation persued by different counsel: As such we are of the considered opinion that such litigation must be effectively discouraged and the appellant should be burdened with maximum costs.

20. At the same time we deem it our duty to express our anguish and reiterate that learned members of the Bar owe a very delicate responsibility towards the Court, their clients and the public in general. Any effort to streamline the system of administration of justice and create public confidence therein might be futile without their cooperation. It was somewhat disconcerting to notice that despite the observations of the learned Single Judge that the appellant had been wrongly advised in filing a review application, his orders were unsuccessfully questioned right up to the level of the Honourable Supreme Court. Again in the Supreme Court Mr. Muzaffarul Haq stated that he would apply for extension of time before the trial Court but, decided to move an application under section 12(2), C.P.C. instead. Indeed learned members of the legal fraternity ought to be conscious that frivolous litigation is one of the major causes of making our justice delivery system ineffective and the resultant public outcry. Unless we make a concerted effort to arrest it and put our own house in order, the whole system may perish. These are the reasons for the short order announced on 3‑8‑2001. H.B.T./A-321/K Order accordingly.