1987 PLP 211 (SCMR)

Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner. Nemo for Respondents. Date of hearing: 8th December, 1986. MIAN BURHANUDDIN KHAN, J.‑‑ Leave is sought to appeal against the order and judgment dated 5‑6‑1985 of learned Single Judge of the Lahore High Court, Multan Bench, Multan in Writ Petition No.516 of 1985.

2. The facts leading to this petition are that Sardar Muhammad, respondent No.3 and Mst. Batool, respondent No.4 filed separate pre‑emption suits against the petitioner in respect of the suit land situate in Kotli Hashim, Tehsil Mailsi, District Vehari. Both the suits were decreed by consolidated judgment of 25th June, 1973. Mst. Batool was held to have a superior right over Sardar Muhammad, rival pre‑emptor. She was asked to deposit the sale price by 30‑7‑1973 and in case of failure to deposit the decree amount, the decree shall stand in favour of Sardar Muhammad respondent No.3 who shall deposit the decretal amount by 3‑9‑1973 in default whereof the suit shall stand dismissed. Mst. Batool did not deposit decretal amount by the specified date, however, Sardar Muhammad deposited it by the due date. It is alleged that on the 26th July, 1973 an application purported to have been signed by Sardar Muhammad, decree‑holder, was moved to the fact that he and Mst. Batool respondent No.4 have reached a compromise out side the Court with the petitioner and that he be allowed to withdraw his Zer‑e‑Punjum. It was allowed by order dated 27‑7‑1973 and in pursuance thereof a cheque was also prepared but the amount was not withdrawn from the Bank. In the circumstances, it is claimed that Sardar Muhammad had abandoned his right to pursue the decree and the petitioner, therefore, filed a suit praying that the decree dated 25‑6‑1973 passed in favour of Sardar Muhammad be cancelled.

3. This suit was dismissed by the trial Court on the ground that the alleged compromise had not been proved. From this order the petitioner filed an appeal, which was dismissed by the Additional District Judge. He then filed a revision petition which was dismissed vide order dated 27‑10‑1980. The petitioner then filed an application under sections 47, 144, 151 read with Order XXI, Rule 2 and Order XXIII, Rule 3, C.P.C. before the trial Court. This objection petition was dismissed by the trial Court and revision against the said order was dismissed by the District Judge. Thereafter, the petitioner invoked the constitutional jurisdiction of the High Court by a writ petition which was dismissed by the impugned order.

4. The learned counsel for the petitioner contended: that the findings of the Courts returned in proceedings which were wholly illegal and incompetent under the law, could not be made the basis of dismissing the objection petition filed by the present petitioner regarding the post‑decree compromise reached between the parties; that the order of the learned Civil Judge shutting out evidence on issues framed for deciding the objection petition of the petitioner, was legally incorrect and liable to be set aside; that the evidence on record regarding the factum of compromise having been reached between the parties, has been misread and ignored by the Courts in the earlier round of litigation.

5. We have examined the points raised by the learned counsel for the petitioner. None of these have any substance. The petitioner had led evidence regarding the compromise in the first round of the litigation; therefore, there was no necessity of recording further evidence qua the "Compromise". The findings of the Courts below are against the petitioner and, therefore, we would not re‑examine the evidence on that behalf. Leave is refused and the petition is dismissed. M.I. Petition dismissed.