1993 PLP 1394 (CLC)

‑‑‑‑OXXIII. R. 3 & S. 115‑‑‑Revision‑‑‑Order procured by consent of the parties could not be allowed to be challenged on the basis of technicalities‑‑ Justice having been done in the case by consent of the parties, case was not fit one for exercise of revisional jurisdiction, Sh. Zamir Hussain for Petitioners. Briefly stated facts of the case out of which this Civil Revision has arisen are that land measuring 3 Kanals situated in village Jalwal, Tehsil Jand is alleged to be owned and possessed by the plaintiffs on the basis of a registered sale‑deed dated 2‑7‑1977. It is contended in the plaint that the defendants who are the petitioners before this Court got some land in exchange from the disputed Khasra from one Muhammad Amin and on the basis of this exchange, they wanted to occupy the land which actually is owned and possessed by the plaintiffs. The suit has been contested. The learned trial Court on the basis ofthe pleadings of the parties settled the various issues and after recording of evidence vide judgment and decree dated 13‑5‑1992 decreed the suit which decree was challenged by the petitioners before the learned District Court of Attock in first appeal. Learned lower appellate Court vide order dated 8‑7‑1992 partly accepted the appeal and modified the decree. The said judgment and decree was challenged in Civil Revision No.430 of 1992, which was set aside vide order dated 31‑1‑1993 and the appeal was directed to be decided afresh by the lower appellate Court. In post‑remand proceedings before the learned first appellate Court on 3‑3‑1993 the parties made the following statements:‑‑ and agreed that their case may be decided on the bass of statement of Muhammad Ijaz Khan, Ex‑Member, District Council in supersession to the evidence already recorded in the case. Learned first appellate Court accordingly directed Ijaz, Ex‑Member, District Council to appear and make a statement. The said person appeared in the Court and made the following statement on 9‑3‑1993:‑‑ Learned lower appellate Court passed a decree in the suit in terms of the statement made by the said person vide judgment and decree dated 9‑3‑1'x33 and the appeal was disposed of accordingly. Aggrieved of this judgment and decree, the petitioners who are defendants and appellants before the learned lower appellate Court have filed this Civil Revision.

2. Sh. Zamir Hussain, Advocate has appeared on behalf of the petitioners and has argued that the learned first appellate Court has no jurisdiction to refer the matter to be decided by a witness even with consent of the parties inasmuch as the appeal had been remanded to him by this Court for rendering his own decision after considering the whole evidence of the case and, therefore, the impugned judgment and decree is without jurisdiction and further that the statement of Muhammad Ijaz Khan cannot be considered to be a statement as a "referee" and his status being that of witness the judgment could not have been rendered as per his suggestion when he has specifically stated in his statement that the appellants have purchased land measuring 1 Kanal 10 Marlas and this land is in their possession. Learned counsel states that the statement should have been accepted in part which favours the petitioners and no reliance could have been placed on the rest of his statement inasmuch as he was just a witness and at the most a local commissioner, therefore, the impugned judgment is erroneous in law.

3. I have considered the arguments addressed by the learned counsel for the petitioners and have also gone through the record. It is established principle of law that the parties to a lis are at liberty to adopt any mode of trial of their dispute at any stage of the proceedings. There is no bar to the parties to get the matter settled in the agreed mode even during post‑remand proceedings. Consequently the parties were well within their rights to agree to mode for settlement of their dispute by agreeing and referring the decision of their dispute in accord with the statement of Ijaz. It is not the case of the petitioners that they did not agree to the referring the matter to the said person. Merely because Muhammad Ijaz has been described as a "witness" in the statement or order will not make him a witness in the suit. His status is that of "referee" as is clear from the statement made by the parties as well as the statement made by the referred person. The petitioners cannot be allowed to rely on a portion of the statement which favours them and not to be bound by the statement which does not favour them. Petitioners having agreed to the decision of the dispute in accord with the statement of a particular person, cannot be allowed to resile from their commitment and hence approbate and reprobate, after statement adverse to their interest is made by the nominated person. The arguments addressed by the learned counsel for the petitioners are baseless and without any lawful basis and, therefore, are repelled. This is a civil revision. In exercise of my discretionary jurisdiction an order procured by consent of the parties cannot be allowed to be challenged on the basis of technicalities and use of particular phraseology. Justice having been done in the case I do not consider it a fit case for exercise of the revisional jurisdiction of this Court. Resultantly, I see no force in this Civil Revision. The same is dismissed in limine. AA./A‑388/L Revision dismissed.