1980 PLP 331 (CLC)

(d) Evidence Act (I of 1872)

Ss. 40 to 44-Judgment-Relevancy of-Sections 40 to 44 relate to relevancy of judgments, orders and decrees for purpose of their admission in evidence-Matter before High Court not being in regard to admission of impugned order in evidence, S. 44, Evidence Act, held, has no bearing on matter of Baud having been committed on appellant and his appeal accordingly Competent.-[Judgment-Fraud]. Yusuf Ali Khan for Appellant. This second appeal is directed against an order of an Additional District Judge whereby he disposed of the first appeal of the appellant, Mumtaz Ali, in terms of a compromise reached by the parties.

2. The impugned order was passed in consequence of an applica tion filed by the respondent, Haji Muhammad Ramzan, for the ejectment of the appellant from a shop. It was dismissed by a kept Controller. The respondent, therefore, went in appeal before the learned Additional District Judge. He heard arguments to the appeal on 13th June, 1978 and adjourned the case to 20th June, 1978 for orders. In the meantime, on 14th June, 1978 the parties and their counsel appeared before the learned Additional District Judge and informed him that they had entered into a compromise and prayed that the appeal be taken up on the same day. The learned Additional District Judge acceded to their request and proceeded to record the terms of the compromise as stated by the parties. He also obtained thumb-impressions of the parties on the Order- Sheet in token of their acceptance of the terms of the compromise. He then disposed of the appeal "in terms of the statements of the parties" with no order as to costs. It is against the said order of the Additional District Judge that this second appeal has been preferred by the appellant.

3. Learned counsel for the appellant contended that the appellant was not a consenting party to the compromise in question and, therefore, the order of the learned Additional District Judge, which is based on the aforesaid compromise, is not sustainable. In the grounds of appeal it was alleged by the appellant that on "14th June 1978 counsel for the appellant called him and took him into the Court Room of the learned Additional District Judge, where at the instance of the counsel the appel lant signed a document not knowing what was written therein." It was also stated by him that the appellant had been deceived by his counsel. As for the learned Additional District Judge, it was averred by the appellant that he too joined hands with the counsel and the respondent. He also added that if -the learned Presiding Officer bad read what was written in the document, the appellant would have never signed that",

4. In view of the aforesaid allegations, I obtained a report from the learned Additional District Judge which is to the following effect :

"The fact of the matter is that the case was argued on 13th June 1978 and during the course of arguments both the parties expressed their desire to settle the matter outside the Court fix:, However, I heard the arguments and fixed the case for orders on 20th June, 1978. On the following day both the parties with their counsel appeared and expressed their desire that the case which had already been adjourned to 20th June 1978 for orders, be taken up today and be decided according to their statements. The undersigned, therefore, passed an order in clear terms that in accordance with the wishes of both the learned counsel the appeal was being taken up on that date. Thereafter the statement of Muhammad Ramzan appellant was recorded which is in detail. It was signed by him and he also put his thumb-impression. The thumb impression of Muhammad Ramzan was obtained by way of abundant caution. Similarly, the statement of respondent Mumtaz Ali was also got recorded. Mumtaz Ali put his signatures and also his thumb-impression. The learned counsel of the respondent also put his signatures. Thereafter the judgment was dictated there and then in the presence of the parties and was announced. During the proceedings, the counsel of the appellant Syed Hamid Ali was present and the statement of the appellant was recorded in his presence. The statements were read over to the appellant and the respondent and in token of their correctness the signatures and thumb impressions were obtained. It is absolutely incorrect that the undersigned did not signed the order when he had announced the same. It is equally unfounded that the undersigned joined hands with the counsel and the respondent. Everything was done fairly and frankly in accordance with the desire as expressed by the parties in their statements,"

3. Learned counsel for the appellant contended that the fact that the appeal was disposed of by the learned Additional District Judges on a date other than the date fixed for the announcement of order by him supported the contention of the appellant that he was a party to the fraud practised on the appellant. I am unable to agree with him. It is a matter of common knowledge that when the parties enter into some compromise they, more often than not, are in a hurry to have the same recorded and the case (to which it relates) is disposed of immediately' without waiting for the date fixed for its hearing. The same happened in the case in hand. Thus, the manner in which the appeal was disposed of by the Additional District Judge, on the basis of the compromise in question, being not au unusual one, does not advance the case of the appellant.

6. The allegations levelled by the appellant against the learned counsel (engaged by him for the first appeal) and the learned Additional District Judge are not supported by any evidence except the affidavit of the appellant. No other person has come forward to swear to a similar affidavit. The precise circumstances showing that the learned Additional District Judge was in league with his counsel, and the respondent have not been spelt out. The said allegation against the learned Addi tional District Judge has been refuted by him. It has also been denied by him that the statements of the parties were not read out to them. It is not disputed that both the parties had with them their counsel when the terms of the compromise were recorded. The statements by the parties as reproduced by the learned Additional District Judge were authenticated by them by affixing their thumb impression. There is no affidavit by the learned counsel for the appellant, who assisted him before the learned Additional District Judge, to the effect that the statements of the parties were not read out to them. Therefore, in view of what has so far been brought on the record, I am not impressed by the averment of the appellant that he was wronged by his counsel and the Additional District Judge in the matter of the dispo sal of his first appeal.

7. Even if it is assumed that fraud was practised on the appellant as alleged by him, his appeal before me would not be competent the order impugned herein having been passed on the basis of a compromise is a consent order. If any authorities were needed to support the view taken by me, I will, with respect, refer to Muhammad Bibi and 2 others v. Abdul Ghani and 2 others (P L D 1973 Kar. 444), Zahir Said Alvi v. Lachhmi Narayan (A I R 1932 P C 521) and Riaz Ahmad v. Mian Abdul Jabbar (P L D 1922 Lah. 711).

8. Learned counsel for the appellant relied on section 44 of the Evidence Act, 1872 to contend that since the appellant had assailed the order of the learned Additional District Judge on the ground of fraud, his appeal was competent. A bare perusal of sections 40 to 44 of the Evidence Act would show that they all relate to the relevancy of judg ments, orders and decrees for the purpose of their admission in evidence. Since the matter now before me is not in regard to the admission of the impugned order in, evidence in the present case, section 44 has no bearing on the matter under consideration. 8-A. The upshot of the whole discussion is that the present appeal, being against a consent order, cannot be entertained. It is, therefore, dismissed in limine. If the appellant desires to avoid the impugned order on the ground that it was procured by fraud and or wants to take his learned counsel and the learned Additional District Judge to task for what they are alleged to have done, he may at his own risk seek such other remedies as may be open to him under law. M. Y. M. Appeal dismissed