1999 PLP 1287 (CLC)

This revision petition is directed against the judgment and decree, dated 4‑4‑1998 passed by the learned Additional District Judge, Alipur, District Muzaffargarh, whereby he confirmed the judgment and decree, dated 10‑6‑1997 passed by the learned Civil Judge 1st Class, Alipur.

2. Briefly stated the facts are that the petitioners/plaintiffs filed a suit for permanent injunction restraining the respondents/defendants to use their property as thoroughfare. The claim of the petitioners was resisted by the respondents. During the pendency of suit the trial Court appointed a Local Commissioner to inspect the site and submit report. Accordingly, the report was submitted on 13‑10‑1994. The petitioners filed their objections to the report on 27‑11‑1994. The matter was thereafter adjourned to various dates for effecting compromise and finally the matter was disposed of on 10‑6‑1997 on the basis of compromise duly recorded on the statements of parties as well as their counsel.

3. The petitioners/plaintiffs felt aggrieved of the said order, dated 10‑6‑1997 and assailed the same before the learned Additional District Judge, Alipur, who did not find favour with the contentions of the petitioners and dismissed the appeal vide judgment and decree, dated 4‑4‑1998. Having felt dissatisfied with the said judgment and decree, dated 4‑4‑1998, instant civil revision has been instituted.

4. Arguments have been heard and record perused.

5. It is contended by the learned counsel for the petitioners that order, dated 10‑6‑1997 is alleged to have been passed on the basis of compromise, as stipulated by Order XXIII, Rule 3, C.P.C. but it does not fulfil the requirements contained therein. While explaining his stand, he added that if the parties had to decide the matter on the basis of compromise, then their statements must have been recorded separately. However, the record shows that no separate statements were recorded and the suit had been decided on the basis of an order statedly to be unanimous statement of the parties. He next argued that local commission was appointed for the disposal of interim injunction application and not for the final disposal of suit. As such no final adjudication of matter in issue could be made on the basis of said report of local commission. He, thus, argued that by no stretch of imagination, order, dated 10‑6‑1997 can be construed to be an order passed on the basis of compromise arrived at between the parties.

6. Conversely, the impugned order, dated 10‑6‑1997 has been supported by the learned counsel for the respondents. He contended that factum of compromise is reflected from their unanimous statement which was duly signed by their respective learned counsel and trial Court was fully competent to pass a compromise decree/order accordingly, that the impugned order being a consent order could only be challenged if some fraud had been alleged and that too in clear cut terms, that no such plea has been taken in the instant case and even on this score the impugned decree/order is warranted by law and relied upon Mumtaz Begum v. Karachi Buildings Control Authority and 3 others 1997 MLD 1953 (Karachi), that a compromise entered into by the counsel on behalf of parties is binding on them and leave to appeal was refused by the Apex Court of this country and relied upon Messrs Azhar Asia Shipping Agency and another v. Ghaffar Corporation PLD 1996 SC 213, that a consent order to which the counsel is a party is binding on the said party even, if it is assumed that the counsel had exceeded his authority and relied upon Allah Ditta v. Bashir Ahmad 1997 SCMR

181. He, thus, submitted that the impugned order does not suffer from any jurisdictional defect, as such the civil revision merits dismissal.

7. Admittedly the order, dated 10‑6‑1997 has been passed on the basis of compromise as is evident from its bare reading. It is also duly thumb‑marked and signed by the parties as well as their respective counsel. The impugned order has been passed under the provisions of Rule 3 of Order XXIII, C.P.C. which reads as follows:‑‑ "

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." A bare reading of Rule 3, Order XXIII, C.P.C. shows that it is the satisfaction A of the Court which allows the compromise and disposes the matter on the basis) of compromise. Record reveals that after the submission of objections on the report of local commission, parties kept on seeking adjournments from 10‑12‑1996 to 10‑6‑1997 as talks of compromise were going on. Thus, the impugned order/decree, dated 10‑6‑1997 was not passed abruptly and is there result of due deliberation and consultation which continued for about six months. Again it is admitted fact that a consent order/decree can only be challenged on the ground of fraud as held in Mumtaz Begum v. Karachi Buildings Control Authority and 5 others 1997 MLD 1953 (Karachi) and there being no such plea having been raised by the petitioners, the impugned order cannot be interfered with. It is also fact that parties are bound by the statements " of their counsel even if they exceed their authority as held in Allah Ditta v. Bashir Ahmad 1997 SCMR 181, so even on this score, the impugned order having been signed by their counsel is binding on the parties with equal force.

8. It is also fact that authority given by the plaintiffs/petitioners to counsel who had signed compromise statement on their behalf, had never been revoked by them. Thus, such compromise entered into by counsel on behalf of a party would bind such party. Reliance is placed upon Messrs Azhar Asia Shipping Agency and another v. Ghaffar Corporation PLD 1996 SC 213.

9. Be that as it may, section 115 of the Civil Procedure Code applies to cases, involving illegal assumption, non‑exercise or irregular exercise of jurisdiction. It cannot be invoked against conclusions of law or fact, which do not, in any way. effect the jurisdiction of this Court; no matter, howsoever, erroneous, wrong or perverse, the decision might be either on a question of fact C or law, unless the decision involves a matter of jurisdiction. As erroneous `' conclusion of law or fact is liable to be corrected in appeal, but revision will not service. Judgments and decrees, now sought to be impeached and set at naught are accordingly, unexceptionable as the same neither appear to suffer from any p infirmity or any irregularity, what to speak of material irregularity, no perversity or arbitrariness.

11. Hence viewed from any angle, revision petition merits dismissal and is, hereby dismissed, with no order as to costs. Q.M.H./M.A.K./N‑131/L Revision dismissed.