2003 PLP 1768 (SCMR)

KARAMAT NAZIR BHANDARI, J.

Respondents filed a suit to pre-empt sale in favour of the petitioners. The suit was contested. Issues were being tried when on 5-11-1998, learned counsel for the petitioners namely, Mr. Mukhtar Ahmad. Advocate made a statement that if the respondents-plaintiffs were willing to pay Rs.2,00,000 he has no objection to the suit being decreed. This statement was accepted by Ch. Bashir Ahmad, Advocate appearing for the respondents-plaintiffs. The trial Court adjourned the suit to 12-11-1998 for filing copy of Jamabandi indicating plaintiff's ownership. Thereafter the case kept on adjourning until 25-2-1999 when the petitioners, through another counsel filed an application dated 25-2-1999 alleging that the statement made by their counsel on 5-11-1998 was without authority and the result of collusion with the plaintiffs. It was prayed that the Court should record the better statement of the petitioner as also decide the suit on merits. This application was contested by the respondents-plaintiffs. The trial Court rejected the application on 24-6-1999 and on the same date decreed the suit. Petitioners failed in appeal before the Additional District Judge, Hafizabad vide judgment dated 22-3-2000. The petitioners also failed in revision (Civil Revision No.984-D of 2000) in the Lahore High Court, hence this petition for leave to appeal.

2. By relying on the case, of Umar Bakhsh and 2 others v. Azim Khan and 12 others 1993 SCMR 374, it is contended by learned counsel for the petitioners that before the compromise could be accepted and given effect to by the trial Court, the petitioners retracted from the same on legitimate grounds and as such, the application should have been allowed and the suit decided on merits. Learned counsel appearing for the respondents has supported the impugned judgment as also the decree upheld by the High Court.

3. It is established from the record that on 5-11-1998 none of the petitioners was present in the Court. It is also clear that much before the decretal of the suit on the basis of concession dated 5-11-1998, the petitioners disowned the concession by levelling serious allegations of collusion/conspiracy against their counsel. The trial Court proceeded to decide the application summarily without investigating the allegations of collusion and conspiracy. In our considered view the procedure adopted by the trial Court is improper. The nature of allegations required that the same may be determined by allowing the parties to substantiate/rebut the same. The fate of the suit should have followed the determination of the application. In the case of Muhammad Akbar and another v. Muhammad Aslam and another PLD 1970 SC 241 parties agreed to be bound by the statement by a third person ac to matter in dispute. However, before the statement was made by third person, one of the parties retracted from the agreement. In the circumstances, this Court concluded that the application for retraction was required to be disposed of after investigation of allegation of collusion made therein. We respectfully follow the principle settled in the above judgment.

4. As the application of the petitioners dated 25-2-1999 has not; been property disposed of we convert this petition into appeal and accept the same. The impugned judgments and the decree are set aside and the case is remanded to the trial Court for fresh decision in accordance with law after giving opportunity to the petitioners to substantiate their allegations and to the respondents to rebut the same. In the event the application is allowed, the suit will be tried on merits in accordance with law. Parties are left to bear their own costs. S.A.K./E-21/S Appeal accepted.