2016 PLP 1604 (YLR)

AZHAR SALEEM BABAR, J.

The above captioned appeal has been filed to call in question the validity of judgment passed by learned District Judge Muzaffarabad dated 27.09.2013 through which a compromise decree dated 29.05.2012 has been set aside.

2. Precise facts of the case are that appellant herein filed a suit for specific performance of contract along with perpetual injunction in the Court of learned District Judge Muzaffarabad on 02.03.2012 contending therein that he purchased land from Kausar Yasmeen, proforma respondent, under khewat No.187 khasra No.259 measuring 12 marlas along with a house by way of written agreement to sell dated 15.02.2012 in lieu of Rs.5,00,000/- and appellant got possession of the land in question accordingly. The vendor (proforma respondent herein) was held responsible to execute sale-deed in favour of the vendee (appellant herein). Therefore, under the circumstances, trial Court was requested to issue a decree for specific performance of contract in favour of the appellant herein. Learned District Judge, after due process of law, issued a compromise decree dated 29.05.2012 in favour of the appellant herein. After a lapse of 7 months of the compromise decree, Nusrat Tanveer, respondent No.1 herein, filed an application under Section 12(2) of C.P.C. for setting aside the same on the ground that it has been obtained due to connivance, fraud and by concealing the true facts. It has been alleged that compromise decree cannot be granted on the basis of agreement to sell, so, the same is liable to be set aside.

3. I have heard learned counsel' for the parties and gone through the available record. Respondent, Nusrat Tanveer, filed an application for cancellation of decree dated 29.05.2012 under section 12(2), C.P.C. before the Court of District Judge Muzaffarabad on 11.01.2013. Learned counsel below formulated the following issues for resolving the matter:--

4. After seeking evidence and hearing the parties learned District Judge accepted the application by setting aside impugned decree dated 29.05.2012. Points for resolution in the instant case are that:-- No.1- That whether a declaratory decree could be passed in a suit for specific performance of contract in view of compromise between the parties? No.2- That whether decree dated 29.05.2012 attracted the provisions of Section 12(2) of C.P.C.? No. 3- That what is the effect of compromise decree dated 29.05.2012 on the suit titled "Mst. Nusrat Tanveer v. Kausar Yasmeen" subjudice before the Court of Civil Judge Muzaffarabad?

5. So far as a declaratory decree in a suit for specific performance of contract is concerned, it is a general principle of law that a declaratory decree cannot be issued in such a suit. There is a plethora of judgments on the point, some of which have been referred by learned counsel for the respondents. Learned counsel for the respondents has relied on 2006 SCR 183, 2006 SCR 92, PLD 2006 SC (AJ&K) 9 = 2006 CLC 1872, 2001 CLC 1502 and 2012 MLD 1440 by arguing that a declaratory decree cannot be issued in furtherance of a suit for specific performance of a contract. I agree with the proposition resolved in the cited judgments because an agreement to sell is not a title document; rather it is an instrument for obtaining a title document. In a suit for specific performance of a contract, a decree can be issued directing the defendant to execute sale-deed in favour of the plaintiff or the Court may direct for registration of the sale-deed through any of its officials. The matter at hand is a bit different, because this is not a simple case of decree issued in furtherance of the suit for specific performance of contract; rather the impugned decree dated 29.05.2012 has been issued on the basis of compromise between the parties. Javaid Aziz, appellant herein, filed a suit for specific performance of contract along with a relief for perpetual injunction regarding land under khewat No.187 khasra No.259 measuring 12 marlas by contending that Kausar Yasmeen has executed an agreement to sell in his favour on 15.02.2012 and has received an amount of Rs.5,000,00/- as consideration of the land. It was prayed by him that Kausar Yasmeen, defendant, be directed to execute sale-deed on the basis of agreement to sell. During proceedings, Javaid Aziz and Kausar Yasmeen filed a compromise before the Court wherein it was contended that Mst. Kausar Yasmeen has accepted the claim of Javaid Aziz, plaintiff, to the extent of 7 marlas and Javaid Aziz, plaintiff, admitted the claim of Kausar Yasmeen, defendant. Kausar Yasmeen recorded her statement in support of the compromise dated 04.04.2012 and deposed before the Court that she admits the contents of the compromise-deed and requested the Court to decide the case in accordance with the compromise. Learned District Judge Muzaffarabad decided the case on 29.05.2012 by declaring that Javaid Aziz (plaintiff) is owner of 7 marlas land along with house constructed therein under survey No.259 situated in village Naloochi Tehsil and District Muzaffarabad on the basis of compromise. Suit filed by Javaid Aziz was dismissed to the extent of 5 marlas.

6. In my estimation, the impugned decree dated 29.05.2012 has not been issued in furtherance of the suit for specific performance of contract, rather it has been issued on the basis of compromise between the parties. So, the principle that a declaratory decree cannot be issued in furtherance of a suit for specific performance of a contract does not apply to the case at hand. The only requirement for issuing a decree on the basis of compromise is that the compromise should be lawful. The matter can be explained through an example that A files a suit for specific performance of contract against B. A and B enter into compromise whereby B agrees to alienate some other land to A in lieu of the suit land, provided A withdraws his suit for specific performance of contract. A valid declaratory decree can be issued in favour of A for a land which is not subject matter of the suit. It may be reiterated at the cost of repetition that compromise decree between the parties dated 29.05.2012 was not issued on the basis of suit for specific performance of contract; rather the decree was issued on the basis of compromise. Such a decree is lawful provided it fulfills the requirements of Order XXIII Rule 3 of C.P.C. For proper appreciation, Rule 3 ibid is reproduced as under:-- "Order XXIII, Rule

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 recorded, and shall pass a decree in accordance therewith so far as it relates to the suit".

7. Compromise between the parties may be of whole suit or a part thereof and may even include the matter that does not relate to the suit. AIR 1932 B 466 may be referred in this regard. While relying on AIR 1931 Bombay 295, the Bombay High Court in its subsequent judgment reported as AlR 1932 Bombay 466 concluded as under:-- "The law not merely entitles the parties but compels the Court to record a compromise in accordance with the terms "so far as it relates to the suit" under O.XXIII, R.3; but where the compromise is plainly outside the suit, the Court may refuse to incorporate it in the decree; but where it is a consideration of the compromise and therefore intimately connected with it, the words "relates to the suit" are wide enough to embrace such a term of the compromise, as for instance, the consideration for the compromise, even though this consideration may be entirely outside the scope of the suit and relate to property which was never in question in the suit itself. Under O. XXIII, R.3, the Court has a duty and not a discretion to record a lawful compromise subject possibly to an inherent power of refusal where a substantial injustice would be worked."

8. Now, the question arises that whether compromise between the parties in the suit titled "Javaid Aziz v. Kausar Yasmeen is lawful? As stated earlier, Kausar Yasmeen in the cited case surrendered her claim to the extent of 7 marlas of land out of survey No.259 min situated in village Naloochi. Her ownership to the extent of 7 marlas has not been denied by the appellant. It has been contended by Nusrat Tanveer that she had filed a suit against Kausar Yasmeen in the Court of Civil Judge Muzaffarabad wherein compromise had been effected by way of a Jirgadari. It may be mentioned here that Nusrat Tanveer, Kausar Yasmeen and Zahida Bibi are real sisters and Nusrat Tanveer in her application under Section 12(2), C.P.C. has contended that all the three sisters are co-owners in khewat Nos.187 and 188 measuring 10 kanals 13 marlas. So, Nusrat Tanveer has not denied that Kausar Yasmeen owned land worth 7 marlas which was subject matter of compromise in suit titled "Javaid Aziz v. Kausar Yasmeen." It may also be mentioned here that a co-owner is entitled to alienate his/her share from a specific survey number provided quantity of land of survey number does not exceed his/her overall share in the khewat. 2002 CLC 372 Lahore may be referred in support of this version. In these circumstances, Kausar, Yasmeen entered into a lawful compromise with Javaid Aziz in suit titled "Javaid Aziz v. Kausar Yasmeen and suit was validly decreed on 29.05.2012 on the basis of compromise.

9. The next point for resolution is whether application under Section 12(2) filed by Nusrat Tanveer in the Court of District Judge Muzaffarabad on 11.01.2013 was in accordance with law. Section 12(2), C.P.C. would be useful to be reproduced for proper appreciation. 12(2)"Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."

10. Necessary ingredients mentioned in subsection (2) of Section 12, C.P.C. are fraud, misrepresentation and want of jurisdiction. As mentioned earlier, Kausar Yasmeen was admittedly owner of the land measuring 7 marlas under survey No.259 situated in village Naloochi and she owned more than 7 marlas in the khewat. So, she was competent to enter into compromise with Javaid Aziz in a suit filed against her. Mst Nusrat Tanveer in her application under Section 12(2), C.P.C. has contended that decree dated 29.05.2012 has been issued at her back and without impleading her as party in the suit. This assertion does not constitute fraud by Kausar Yasmeen. In this context, if suit filed by Nusrat Tanveer against Kausar Yasmeen is examined, it shows that Nusrat Tanveer has claimed 7 marlas of land from Kausar Yasmeen in her suit for declaration and specific performance of contract. The record, therefore, shows that Nusrat Tanveer claims 7 marlas of land from Kausar Yasmeen and Kausar Yasmeen has surrendered her title of land to the extent of 7 marlas in favour of Javaid Aziz. I can find a verification on record which shows that Nusrat Tanveer has already alienated 5 marlas 1/2 Sarsai land in excess of her prescribed share. In such a situation, Nusrat Tanveer was not a necessary party in the suit titled "Javaid Aziz v. Kausar Yasmeen". Even if Mst. Nusrat Tanveer is presumed to be a necessary party in the case titled "Javaid Aziz v. Kausar Yasmeen", the suit could have been dismissed for non-impleadment of a necessary party. But non-impleadment of Nusrat Tanveer in that case does not constitute the element of fraud. It is an admitted fact that it was Kausar Yasmeen who entered into compromise with Javaid Aziz whereupon impugned decree dated 29.05.2012 was issued. So, identity of Kausar Yasmeen is not disputed. The element of misrepresentation is, therefore, not attracted in the case.

11. Javaid Aziz filed his suit for specific performance of contract before the Court of District Judge wherein the consideration amount has been mentioned as Rs.500,000/-. The parties reside within the territorial jurisdiction of District Muzaffarabad, so, question of want of jurisdiction also does not arise. In view of the afore-discussed situation, application filed by Nusrat Tanveer under Section 12(2), C.P.C. for cancellation of decree dated 29.05.2012 was not competent because it did not attract any of the provision of the Section.

12. The next question is that what is the effect of compromise decree dated 29.05.2012 on the suit filed by Nusrat Tanveer against Kausar Yasmeen which is sub judice before the Court of Civil Judge/Traffic Magistrate Muzaffarabad. A perusal of record shows that Mst. Kausar Yasmeen was owner of land measuring 14 marlas under survey No.259. Nusrat Tanveer claims 7 marlas of land from Kausar Yasmeen through her suit filed before the Court of Civil Judge. On the other hand, Kausar Yasmeen alienated 7 marlas of land from the same survey number to Javaid Aziz by way of compromise decree dated 29.05.2012. Apparently, the impugned decree dated 29.05.2012 does not affect the claim in the suit titled "Nusrat Tanveer v. Kausar Yasmeen". However, if it is found that Kausar Yasmeen has alienated 7 marlas of land to Javaid Aziz in excess of her share, compromise decree dated 29.05.2012 may be challenged by Nusrat Tanveer by amending her suit in the Civil Court. So, in my view, decree dated 29.05.2012 does not affect the claim of Nusrat Tanveer in her suit before the Civil Court.

13. Another objection has been raised by Nusran Tanveer in her application under Section 12(2), C.P.C. that compromise decree dated 29.05.2012 has been issued in connivance with Kausar Yasmeen in order to avoid Court fee. It would suffice to say in this regard that if preferential right of a pre-emptor has been affected by this decree, a suit under Right of Prior Purchase Act can validly be filed against such a decree. Upshot of the above discussion is that instant appeal is accepted and the impugned judgment dated 27.09.2013 passed by learned District Judge Muzaffarabad is set aside. As a result, the compromise decree dated 29.05.2012 is maintained. ZC/13/HC(AJ&K) Appeal allowed.