P L D 2004 Karachi 45 (PLP)

KHILJI ARIF HUSSAIN, J.

The appellant filed the appeal against the consent order passed by the learned Single Judge whereby the learned Single Judge allowed the application under section 12(2),.C.P.C filed by the Province of Sindh through Deputy Commissioner (Revenue Office), Karachi. The brief facts of the case are that respondent No.1 filed Suit No.434 of 2001 for specific performance of an agreement of sale entered between the parties in the year 1980. It was stated in the plaint that in terms of agreement of sale respondent agreed to purchase about 196 acres, 26 Ghuntas land situated in Deh Thamong, Taluka Karachi West in a total sale consideration of Rs.1,35,00,000 out of which respondent No.1 paid a sum, of Rs.75,00,000, to appellant. It is also alleged that a written agreement was also entered into between the parties some time in April, 1986 in respect of property in question. The respondent filed suit for specific performance of oral agreement and subsequent agreement dated April, 1986 on 9th April, 2001. The appellant filed written statement and in fact in the sail written statement apparently admitted each and every allegation leveled by the respondent No.1. Within a month's time after filing the suit the appellant and respondent No.1 filed application under Order 23, rule

3. C.P.C. requesting to dispose of the suit and decree be passed in terms of the said compromise. The said compromise application was placed before the learned Single Judge who vide order dated 6-6-2001 instead of passing the decree in terms of the compromise ordered that the parties to appear before the Official Assignee who will examine them in details with reference to the original Record of Rights being summoned- from the concerned District and submit his report about the genuineness of the parties. properties and the agreement. It appears that Official Assignee apparently examined the parties and submitted his report and respondent No. 1's counsel sought time to file objections to, the Official Assignee's report. By order dated 24th December, 2001. Deputy. Secretary; Lana Utilization Board of Revenue and District Executive Officer Revenue were directed to be present in person with record pertaining to the suit land. Without drawing attention of the learned Single Judge, about the order dated 24th December, 2001 the parties obtained an order accepting compromise application. After having notice of compromise decree the Government of Sindh filed an application under section 12(2), C.P.C. on 16th April, 2002 to set aside the said decree as the same has been obtained by fraud. The respondent No.2 in his application stated that Assistant Mukhtiarkar, District Karachi-west, categorically stated before the Official Assignee that the documents/property in question are suspicious. It is alleged in the application that the consent order was obtained by misrepresentation as the parties i.e. appellant and respondent No. 1 misrepresented the Court in failing to point out the order dated 24th December, 2001 whereby the 'Deputy Secretary, Board of revenue (LU) was ordered to appear in person. It is stated that the suit was filed with mala fide intention and to play a fraud upon the Court in usurping the valuable Government land of more than 550 acres on the basis of manipulated/manufactured documents which documents were probably prepared with the connivance of some departmental functionaries. It is also stated that as per official record no entry as alleged viz. Entry No.62 dated 15-7-1974 and Entry No.63 dated 1-7-1975 exist in the register/record of rights and that the documents filed by the respondent No.1 and the appellant were manipulated/manufactured. The learned Single Judge vide his order dated 21-10-2001 with the consent of the respondent No.1 granted the application and set aside the decree with further direction that the matter/main suit maybe fixed for evidence on 13-10-2002 after adopting issues filed by the respondent No.1 on the same day. One of the issue adopted by the learned Single Judge as suggested by, the respondent No.1 was "whether the land is a Government? The appellant, who was the defendant, filed appeal against the said consent order. Heard Mr. Moula Bux Bhatti, the learned Advocate for the appellant, Mr. Abbas Ali the. Additional Advocate-General for the respondent No.2 and Mr. Ghulam Abbas, Advocate for respondent No.

1. The only grievance expressed by the learned advocate of the appellant that the appellant, being one of the beneficiary in the compromise decree, and the impugned order was passed without any notice to him. We have gone through the records and it appears that the notice of the application under section 12(2), C.P.C. has been served upon the appellant who filed the counter-affidavit to the said application. As .the appellant advocate was not present on the date the learned Single Judge with the consent of the plaintiff/respondent set aside the decree. The appellant failed to produce any record to establish that the land in question has been owned -by the appellants and why appellant has given consent to pass decree just after one month of the suit filed for the enforcement of agreement executed about 22 years ago. The appellant as well as respondent failed to satisfy us that in fact the alleged sale consideration of Rs.7,500,000 has been passed between the parties. The appellant also failed to point out why the order dated 24th December, 2001 was not brought to the notice of learned Judge while accepting the compromise application whereby an order to the Secretary Land Utilization to be present in Court on the next date of hearing was passed. This misrepresentation by itself is sufficient to set aside the compromise decree. For the foregoing reasons appeal is dismissed in limine, however, with the observation that the main suit should be disposed of within six months from the date of this and observations made hereinabove are tentative in nature. H.B.T./M-553/K Appeal dismissed