1996 PLP 1942 (SCMR)
IFTIKHAR RASHID and others‑‑‑Appellants Versus HAMEED AKHTAR NIAZI and 4 others‑‑‑Respondents
| Citation | 1996 PLP 1942 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Saleem Akhtar, Muhammad Ilyas and Muhammad Bashir Khan Jehangiri, JJ |
| Parties | IFTIKHAR RASHID and others‑‑‑Appellants Versus HAMEED AKHTAR NIAZI and 4 others‑‑‑Respondents |
| Primary Law | Civil Procedure Code (V of 1908)‑‑‑ |
Q1: What are the key laws and sections cited in 1996 PLP 1942 (SCMR)?
This judgment primarily cites: Civil Procedure Code (V of 1908)‑‑‑ as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 1996 PLP 1942 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Saleem Akhtar, Muhammad Ilyas and Muhammad Bashir Khan Jehangiri, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 1996 PLP 1942 (SCMR) (IFTIKHAR RASHID and others‑‑‑Appellants Versus HAMEED AKHTAR NIAZI and 4 others‑‑‑Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Imtiaz Muhammad Khan, Advocate‑on‑Record for Appellants (in both Appeals).
- M. Bilal, Senior Advocate Supreme Court for Respondent No.1 .
- Date of hearing: 15th October, 1995.
- Imtiaz Muhammad Khan, Advocate-on-Record for Appellants (in both Appeals).
Headnotes / Summary
(On appeal from the order of the Lahore High Court dated 12‑2‑1995 passed in C.M. No. 277/95 in ICA No.5/1990). ‑‑‑‑O. XXIII, R. 3 & S.12(2)‑‑‑Compromise of suit ‑‑‑Misrepresentation‑‑ Proof‑‑‑Essentials‑‑‑Application under S.12(2), C.P.C.‑‑‑Maintainability‑‑‑ Constitution of Pakistan (1973), Art. 185(3)‑‑‑Dispute between two civil servants relating to allotment of house‑‑‑High Court effected compromise between two contestants when matter was being agitated before it‑‑‑Order of High Court in terms of compromise was that appellant would vacate house in question on 29‑1‑1995 and vacant possession would be handed over to respondent and that Government was to ensure that before expiry of fixed period another first available house of similar standard/category was allotted to appellant and vacant possession be given to him‑‑‑Government's review application against order in question was dismissed‑‑‑Appellant making application in terms of S. 12(2), C.P.C. for setting aside order in question, on the ground that he came to know on 2‑2‑1995 that notification dated 7‑11‑94 (relating to retirement of civil servant/respondent) was deliberately concealed by respondent from him as also from Court on the relevant date i.e. 22‑12‑1994; appellant further claimed that had he known those facts on that date viz. 22‑12‑1994, he would not have agreed to any compromise with .respondent‑‑ Held, application under S. 12(2), C.P.C. was maintainable only in cases where consent decree had been obtained by misrepresentation, fraud or where order in question was without jurisdiction‑‑‑Only allegation of misrepresentation seemed to be that respondent did not inform appellant or the Court that he had been retired with effect from 19‑2‑1995‑‑‑Such aspect, however, could not be treated as misrepresentation because notification in question, was published in the Gazette and the fact that after superannuation civil servant was entitled to continue in occupation of residential accommodation for two months‑‑‑Order of compromise was within knowledge of all present in Court, therefore, no one of them including the Government could claim that it had no knowledge of such order‑‑‑Order in question, in fact had been complied with‑‑‑None of the parties could resile from such compromise or deny the same. Respondent Nos.2 to 4: Ex pane (in C.A. No. 279 of 1995).
Judgment & Decree
SALEEM AKHTAR, J.
These two appeals will be disposed of by this judgment as they arise from a common impugned order of the High Court.
2. The dispute relates to the allotment of House No.I.48, F-6/3 which the appellant (Iftikhar Rashid) and respondent No.1 claim but appellant had taken possession of the said house. The said house was allotted to respondent No.1 which was cancelled. Respondent No.1 filed Constitution petition against the cancellation but it was dismissed on 9-4-1990. Respondent No.1 filed I.C.A. against the said order and it seems that stay order had been granted. On 28-2-1990 the said house was allotted to the appellant but the same was cancelled on 15-4-1990. However, it was occupied by the appellan:. Respondent No.1 seems to have tiled an application for contempt against the appellant but during the proceedings, the learned Judges passed an order by which a compromise was recorded and the Infra-Court Appeal filed by respondent No.1 was disposed of in terms of the said order. This order, inter aha, provided that appellant shall vacate the disputed house by 29-1-1995 and vacant possession shall be handed over to respondent No. l and further that the Government of Pakistan, respondent No.1 in I.C.A. was to ensure that before the "expire of the fixed period" another first available house of similar standard/category "was" allotted to the appellant and vacant possession shall be given to him". If no such house was available for allotment to the appellant, the Government was to take on rent house of the same category for the appellant". The Government of Pakistan through Ministry of Housing and Works and Assistant Estate Officer made an application on 13-1-1995 seeking review of order dated 22-12-1994 which was dismissed in limine on 1-2-1995. The learned Judges did not agree with the contention that these applicants came to know about the Notification dated 7-11-1994 whereunder respondent No.1 stood retired with effect from 19-2-1995 only when they started proceeding for complying with the direction dated 22-4-1994. This was not considered to be valid ground for review of the order. On other hand the appellant made a petition under section 12(2), C.P.C. for setting aside the order dated 22-12-1994 on the ground that he came to know on 2-2-1995 that Notification dated 7-11-1994 was deliberately concealed by respondent No.1 from him and also from the Court at the relevant time i.e. 22-12-1994. According to him had he known these facts on 22-12-1994 he would not have agreed to any compromise with respondent No.1. This application was dismissed by the impugned order.
3. An application under section 12(2), C.P.C. is maintained only in cases where a consent decree has been obtained by misrepresentation, fraud or the order is without jurisdiction. The only allegation of misrepresentation seems to be that respondent No.1 did not inform the appellant or the Court that he has been retired with effect from 19-2-1995. In our view this cannot be treated as misrepresentation because the Notification was published in the Gazette and furthermore as observed by the learned Judges, in view of SRO-1031(1)/94 dated 16-10-1994 after superannuation a civil servant remains entitled to continue in occupation of residential accommodation for two months.
4. The learned counsel for the appellant contended that he had not consented to the agreement. This is a dishonest place as from the impugned order it is clear that in the application under section 12(2), C.P.C. the appellant had stated that if he would have known about the Notification he would have not entered into the compromise. The learned counsel for the appellant in other appeal (CA 280/95) filed by the Government also contended that the government was not a party to the compromise. Mr. Sabir, who is Joint Estate Officer arid is present in Court stated that he was present in the Court when the compromise order was passed but he was not a party to it. This order was within the knowledge of respondents Nos.2 to 4 in C.A. No. 279/95 and appellant in C.A. No. 280/95. The fact remains that all of them including Government of Pakistan through its officers accepted the compromise, complied with it and made an allotment to the appellant on 15-1-1995. Now at this stage none of them can deny or resile from the compromise. Both the appeals are dismissed H. B. T./I-241 /S Appeals dismissed.