2020 PLP 884 (CLC)

CH. MUHAMMAD MASOOD JAHANGIR, J.

Inessential detail apart, Maqsood Ali was a big landlord having his estate in three villages, who unfortunately departed on 30.01.1992 leaving behind two sons/petitioners, three daughters/respondents Nos.2 to 4 and widow/respondent No.1. Consequently with regard to area falling in different revenue estates, three inheritance mutations in favour of afore-referred descendants were sanctioned in the year 1992, but thereafter on 15.04.1997 the sons/petitioners brought suit against their mother as well as sisters/respondents claiming that their father in his life vide unregistered memo of gift dated 24.12.1991 had already transferred the entire area to them; that there was no estate to be devolved, but respondents/defendants despite having complete knowledge managed to sanction three impugned inheritance mutations, which being collusive and based upon fraud were not only inoperative rather liable to be cancelled. The suit was contested by respondents Nos.2 and 3 vide joint written statement as well as by respondent No.4 through her independent written defence, but while raising similar allegations that forged, fictitious and fabricated memo. of gift was prepared to disinherit the sisters. It was admitted position that during trial proceedings, the alleged memo. of gift was kept under the carpet and never brought in light. Consequently after protracted and comprehensive trial, the suit was finally dismissed vide judgment dated 12.11.2012, compelling the petitioners to prefer appeal and during its proceedings they tabled application for bringing on record the purported memo. of gift, which was declined by the learned lower Appellate Court, but while exercising revisional jurisdiction this Court allowed the said request, however, the honourble Supreme Court vide order dated 17.11.2017 set aside the latter order and restored former one. In absence of basic document, no case of the petitioners left, resultantly their appeal was dismissed vide impugned decree dated 12.07.2018. To call in question the unanimous judgments of the learned lower fora, this civil revision was preferred.

2. Syed Muhammad Kaleem Ahmed Khursheed, Advocate, learned counsel for the petitioners mainly emphasized that one of the defendants/respondent No.3 while appearing before the learned Trial Court as (PW4) admitted the transaction of gift and also raised no objection for grant of decree in favour of the petitioners, who again reiterated the same stance before the learned lower Appellate Court, whereas in the like terms another defendant/respondent No.2 had also compromised, who too made statement before learned lower Appellate Court on the same lines, as such, no justification left with the learned Court to have refused to decide the lis on the basis of said statements as the same were lawful compromise within the meaning of Order XXIII, Rule 3 of the Code, 1908. In support of his submissions, Syed Kaleem has placed reliance on case law cited as Sh. Afzal Ahmad v. Ijaz Ahmad and others (PLD 1975 Lah. 464), H. Gharibullah v. Mst. Mumtaz Begum and others (1990 CLC 1609), Khushi Muhammad and others v. Dost Muhammad and others (1997 CLC 1995), Allah Wasaya and 5 others v. Irshad Ahmad and 4 others (1992 SCMR 2184), Umar Din and another v. Muhammad Sadiq Hussain and 15 others (1993 SCMR 1089) and Muhammad Mansha and 7 others v. Abdul Sattar and 4 others (1995 SCMR 795). In contra, Messrs Muhammad Mehmood Chaudhry, Waris Ali, Shehroz Tahir, Zubair Virk and Yasin Hatif, Advocates on behalf of respondents/defendants submitted that one of the petitioners is practicing senior advocate of the local Bar, who along with his brother is enjoying the fruits of entire legacy despite that inheritance mutations stood already attested in favour of mother as well as sisters. It is further added that alleged statements being result of coercion and influence could not be treated as lawful compromise and Courts below were perfect in ignoring the same. It was also added on their behalf that the alleged compromise would be completed only when it was accepted by the Court, which never finalized rather retracted and in such situation, the suit as well as appeal was perfectly decided while ignoring the purported statements. At the fag end of their arguments, learned counsel for the respondents stressed that statements of the sisters in favour of their influential brothers, at the most, could be taken as relinquishment of their shares, which being nocuous to public policy could not be given effect. To strengthen their submissions, the learned counsel placed reliance upon case law cited as Vir Singh and others v. Kharak Singh and others (AIR 1925 Lahore 280), Syed Muhammad Ramzan v. Muslim Zaidi and 4 others (PLD 1986 SC 66), Mirza Muhammad Siddique v. Muhammad Abdullah (1989 MLD 54), Mehran v. Settlement Commissioner (Lands), Multan, Additional Commissioner (Consolidation), Multan and 21 others (1994 CLC 1079), Sh. Muhammad Fazil v. Sh. Abdul Qadir and 7 others (1997 CLC 243), Muhammad Aslam and others v. Saleem ud Din and others (2006 CLC 1911), Sardara and Allah Ditta through Legal Heirs and others v. Mst. Bashir Begum and another (PLD 2016 Lahore 587), Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1) and Umar Bakhsh and 2 others v. Azim Khan and 12 others (1993 SCMR 374).

3. Heard, record perused.

4. Admittedly, having failed to bring on record, the impugned original memo. of gift dated 24.12.1991, there left nothing in the case of the petitioners/plaintiffs, hence, being aware of this dereliction, Syed Muhammad Kaleem Ahmed Khursheed, learned counsel restricted his arguments to the effect that lawful compromise was effected and under the law it was sine qua non for the Court below to accept it while granting decree to the extent of defendants who made their statements. To deal with submissions of learned counsel for the petitioners, record was consulted and apprised that Fariha Naeem/defendant No.3 being PW-3 was produced by the petitioners, who contrary to her written statement, supported stance of the plaintiffs that gift was pronounced and inheritance mutations were wrongly sanctioned, she also stated that decree might be awarded to the petitioners yet she never asserted that any compromise was effected. In such situation, when defendant No.3 was just examined to corroborate that alleged gift was made, in absence of any trust worthy supportive evidence, the learned Trial Court was perfect to disbelieve her deposition. No doubt for the first time, on behalf of defendants Nos.2 and 3 affidavits/compromise deeds were filed besides they also recorded statements before learned Additional District Judge during the pendency of appeal that through notable of the family compromise had been effected and prayed for acceptance of appeal and grant of decree to their extent, but soon thereafter out of them, defendant No.2 tabled application that petitioners by practicing fraud without redressing her grievance procured her statement, whereas no compromise was effected, which was independently allowed vide order of even date when appeal was dismissed. Today during the course of deliberation, learned counsel for the other sister/defendant No.3, also adopted the same stance, which was pleaded by defendant No.2 in her application before the learned lower Appellate Court.

5. Before commenting any further it would be advantageous to attend to relevant provision i.e. Order XXIII, Rule 3 of the Code ibid, which being relevant is reprduced below:- "(3) Compromise of suit. Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be record, and shall pass a decree in accordance therewith so far as to relates to the suit." The said provision was further amended by adding following provisos:- "Provided that the hearing of a suit shall proceed and no adjournment shall be granted in it for the purposes of deciding whether there has been any adjustment or satisfaction, unless the Court for reasons to be recorded in writing, thinks fit to grant such adjournment, and provided further that the judgment in the suit shall not be announced until the question of adjustment or satisfaction has been decided. Provided further that when an application is made by all the parties to the suit, either in writing or in open Court through their counsel, that they wish to compromise the suit, the Court may fix a date on which the parties or their counsel should appear and the compromise be recorded, but shall proceed to hear those witnesses in the suit who are already in attendance, unless for any other reason to be recorded in writing, it considers it impossible or undesirable to do so. If upon the date fixed no compromise has been recorded, no further adjournment shall be granted for this purpose, unless, the Court for reasons to be recorded in writing considers it highly probable that the suit will be compromised on or before the date to which it proposes to adjourn the hearing." The proviso in fact overrides the provision by elaborating certain procedure for giving effect to the compromise. Anyhow, a compromise is usually sign of weakness, or an admission of defeat, which, however is a way of settling differences by making concessions to each other. Compromise comes from the latin compromissum, which means "mutual promise." In order that a compromise be accepted, there are three conditions; (i) an adjustment of the suit; (ii) to the satisfaction of the Court; (iii) by means of lawful agreement or compromise.

6. The questions debated at the Bar entailed a decision as to (a) whether the statements made on behalf of respondents Nos.2 and 3 could be treated as lawful compromise; and (b) whether a compromise prior to approval by the Court could be repudiated. There is no cavil that there must be an intention to settle the things/disputes through compromise. As per history of this case, the alleged gift was not brought in light throughout the life of its alleged maker/father. The petitioners further waited and with the passage of time, when inheritance devolved upon all the descendants/parties to the lis, then the memo. of gift was exposed through contents of their plaint filed in suit. The sisters/respondents by filing their independent written statements claimed it to be forged and fictitious. It was matter of record that to belie said allegations during trial proceedings, the basic document was kept out of scene. In the absence of original memo. of gift, the learned Trial Court had no other option, but to dismiss the suit. Then after losing the case upto level of the apex Court with regard to bringing on record the alleged memo. of gift, situation changed and the petitioners, who being brothers were dominants of the family, procured the affidavits/compromise deeds besides statements of their two sisters to assert that against a compromise the dispute with them had been settled, whereas having gone through the affidavits/compromise deeds, most interestingly though these were signed/thumb marked by sisters, but petitioners/plaintiffs were not its signatories in any capacity, as such these were unilateral. Definitely a compromise involved "give and take", but in this case the intention to settle the dispute through compromise was absolutely not explained nor in lieu of giving up their entire shares, the sisters were accommodated against any inch of this or some other property. To me, governing word in Rule 3 of Order XXXIII appears to be not "compromise" but "adjustment" and in absence of an intention and adjustment to other party, it could not be termed as lawful. The next salient factor in not accepting the alleged compromise would be that had there been any valid claim of the plaintiffs with regard to subject matter, that could be satisfied by the defendants, whereas in the case in hand there was guileful and manipulated claim based on forged and fictitious document, which was not allowed by the apex Court to be brought on suit file, as such no occasion existed for its adjustment. In addition thereto, the suit was instituted when legacy of the ascendant had already been devolved upon the contestants vide mutations under litigation, hence the suit property was/is joint, thus indivisible, therefore, until and unless it was bifurcated, a lawful compromise could not be made by some of its co-sharers, which might have prejudiced the rights/interest of the others. In case reported as Vir Singh and others v. Kharak Singh and others (AIR 1925 Lahore 280), while dealing with somewhat similar proposition; it was held that compromise not having been assented to by all the proprietors was contrary to law and the Court was fully justified in refusing to enforce it.

7. The second question may not detain me any longer as in such like situation the same has already been answered in the case cited as Asifa Sultana v. Honest Traders, Lahore and another (PLD 1970 SC 331) while holding that the question where the party, who made the offer, could resile from it depended on the facts and circumstances of each case. Admittedly despite that statements were recorded, but those were not acted upon by any proceedings of the Court and the learned Additional District Judge vide specific order refused to give effect thereto. The respondent No.2 before the learned Appellate Court and the other/respondent No.3 before this Court desired to withdraw their statements, which were never accepted by any forum so far. A Court can only consider the compromise when both the parties freely agree to it and reendorse the same before it. Today before this Court none of the respondents sticked to her statement, then obviously it cannot be termed as compromise. The apex Court in Umar Bakhsh's case (supra) already provided guideline to be kept in mind by the courts while deciding the cases on compromise basis in the manner that the compromise would be completed only when it is accepted by the Court and orders are passed by the Court as desired by the parties, whereas the Court would consider the document to be compromised when both the parties signing it agree and reiterate the contents before the Court, but before the Court if one party to the document resiles from it, then it can be called anything but not an agreement of compromise. Here in this case, the affidavit-compromise was unilateral, as such the signatory was free to repudiate it. It was matter of record that the Court despite receiving affidavit/compromise neither considered to follow the procedure introduced through the proviso of the relevant provision, nor it was pressed by the petitioners at that crucial point of time. Moreover, under afore-referred provision ultimate discretion vests to the Court to accord the compromise as per its satisfaction. As per facts of this case, the Court is not satisfied that either there was possibility of lawful compromise or it could be effected. Even if it is assumed that statements of the two sisters were freely made, those at the most could not be treated more than relinquishment. Having come to the conclusion that no lawful compromise was effected, rather it was merely a relinquishment, which too was not favourable to the petitioners to establish right to them, because the apex Court in Ghulam Ali's case (supra) has already declared such like "relinquishment" by a female unlawful being opposed to "public policy".

8. There is no cavil to say that Court does not act as an idle. It works under the command of law and its dignity is source of trust of the litigants. If the wrong doers are allowed to get their fake claims adjusted from the Courts through arm twisting of feeble organ of the society, then definitely it would promote such evils. Court acts to inspire confidence and commands respect, whose decision must be based on record or material beyond suspicion or odium. The case law relied upon by the learned counsel for the petitioners has been minutely gone through, which runs on different footing as in- Khushi Muhammad's case: the compromise effected before Assistant Commissioner had already been given effect through attestation of mutation; Sh. Afzal's case: each of the parties was fairly adjusted; Muhammad Mansh's case: after making offer of oath to decide the suit, the Court did not allow to resile; Umar Din's case: in fact suit for pre-emption where some of the vendees against receipt of price of their share admitted the superior right of the pre-emption, thus the defendants were also compensated/adjusted; H. Garibullah's case, the fact pleaded in plaint was admitted by the defendants without waiting for the determination of any other question and thereby decree to their extent under Order XII, Rule 6 of the Code, 1908 was awarded; and Allah Wasaya's case: the Court declined to interfere while observing that the impugned decree was passed after contest on the basis of admissions and confessions made by the respective parties, which would not amount to decree on the basis of compromise and could not be assailed under the provisions of 12(2) of the Code, 1908; thus being distinguishable is not helpful to their case.

9. For the reasons recorded above, the unanimous decrees of the learned lower fora being correct narrative of material available on file, whereas learned counsel for the petitioners failed to point out any irregularity or illegality therein, hence are not liable to be interfered with by this Court in exercise of jurisdiction vested under section 115 of the Code, 1908, as such are approved by dismissing civil revision in hand. No order as to costs. ZC/F-7/L Revision dismissed.