1989 PLP 4688 (MLD)

‑‑‑O.XXIII, R.3 & S.115‑‑‑Compromise‑‑‑Challenge to ‑‑‑Revisional jurisdiction‑‑ Exercise of‑‑‑Appellate Court below on basis of compromise effected by attorney of petitioner who was authorised to compromise during subsistence of power of attorney decreed suit in favour of respondent‑‑‑Decision of Appellate Court held, was unexceptionable and could not be interfered with in revisional jurisdiction by High Court as appellate Court below had not committed any illegality or material irregularity. Malik Allah Yar Khan for Petitioner. The petitioner, Mazhar Hussain brought a suit for possession by pre‑emption of 17 kanals of the land in dispute situate in the area of village Sangrey, tehsil Chiniot, district Jhang, against the vendee‑respondents 2 to

4. Malik Sher Muhammad, respondent 1, had brought another suit to pre‑empt the same sale. The two suits were consolidated by the learned Civil Judge, Chiniot, seized with their trial. On the 18th July, 1983, the petitioner filed application through his mukhtar‑e‑khas, Amir Sultan, that he had effected compromise with respondent 1 and that he did not like to pursue his suit and, therefore, the suit should be dismissed as withdrawn. However, the learned trial Civil Judge thought it fit to call the petitioner for recording his statement. After several adjournments the petitioner appeared on the 17th December, 1983, and stated that he had appointed Amir Sultan as mukhtar‑e‑khas to defend the suit but he had come to know that he had colluded with respondent 1 and wanted to get his suit decreed and, therefore, he had revoked his power‑of‑attorney and in his place had appointed Nazar Hussain Jafferi as mukhtar‑e‑khas. Respondent 1 contested the correctness of assertion of the petitioner and insisted that the suit should be decided as per application moved by the petitioner through his mukhtar and in view of the statement of mukhtar‑e‑khas. However, after taking evidence the learned trial Civil Judge did not feel it appropriate to act upon the petitioner's application and decided the suits on merits. Decree for possession of the land in dispute was passed first in the petitioner's favour and on his failure to pay the decretal amount respondent 1's suit was to be decreed. 2.In appeal preferred by respondent 1 the petitioner's mukhtar, Nazar Hussain Jafferi, made statement on the 7th May, 1988, that according to the instructions of the petitioner the respondent 1's suit should be decreed and that of the petitioner be dismissed and that the petitioner's zar‑e‑panjam might be refunded and the appellant (respondent 1) be given the right to deposit the purchase money. This statement was recorded by the learned Additional District Judge, Chiniot, in the presence of the counsel for the parties and the appellant (respondent 1), and was signed by Nazar Hussain Jafferi as well as by the petitioner s counsel. The statement of the petitioner's mukhtar‑e‑khan, Nazar The learned Additional District Judge adjourned the hearing of the appeal to the 10th May, 1988 for recording the statement of the respondents in the appeal. On the last mentioned date the petitioner was directed to appear personally on the 12th May, 1988. The petitioner made application on the 12th May, 1988, that he had not effected any compromise with respondent

1. After getting reply of the application from respondent 1, who asserted effecting of compromise and holding inquiry, the learned Additional District Judge came to the conclusion that the petitioner had in fact instructed his mukhtar‑e‑khas to effect the compromise and gave effect to the same. He also recorded the finding that even the petitioner's suit required dismissal in view of the application moved by his mukhtar before the learned trial Court. The appeal was decided in respondent 1's favour. Feeling aggrieved the petitioner has invoked the revisional jurisdiction of this Court.

3. With the assistance of the learned counsel for the petitioner I have goner through the record of the suit and of the appeal. The appreciation of the evidence by the learned Additional District Judge is found to be fault free. Both the petitioner's mukhtars, Amir Sultan and Nazar Hussain Jafferi, moved for dismissal of the suit when their powers‑of‑attorney given by the petitioner subsisted and were not revoked. They had no doubt power to effect compromise and withdraw the suit. The impugned decision of the learned Additional District Judge is unexceptionable and demands no interference. He has not committed any illegality or material irregularity. This petition is dismissed in limine. H.B.T./M‑1657/L