1986 PLP 326 (CLC)

(d) Provisional Constitution Order (1 of 1981)‑‑ ‑‑Art. 9‑‑Constitutional jurisdiction, exercise of‑‑Compromise of suit on basis of special oath on unauthorised statement of counsel having been validly set aside by appellate Court, held, would not warrant exercise of Constitutional jurisdiction. Syed Riaz Ahmad Pirzada for Petitioner. Nemo for Respondents. Dates of hearing: 16th and 17th November, 1985. Facts giving rise to this writ petition are that respondent No.2, Mst. Bashiran, hereinafter referred to as the respondent, filed an application against the petitioner, Muhammad Sadiq Gondal, for his eviction from certain premises. Application was dismissed by a Rent Controller on the basis of special oath. The respondent went in appeal before an Additional District Judge. It was held by the learned Additional District Judge that Muhammad Yaqoob, attorney of the respondent, who had made offer of special oath, had no authority to do so and, therefore, the order of the learned Rent Controller was not sustainable. Accordingly, the appeal was accepted by the learned appellate authority and the case remanded to the learned Rent Controller for fresh decision. The petitioner has assailed the order of the learned appellate authority by invoking Constitutional jurisdiction of this Court.

2. It was contended by learned counsel for the petitioner that the attorney of the respondent was authorised to make the offer of special oath. He has shown me a copy of power‑of‑attorney executed by the respondent in favour of Muhammad Yaqoob. Although it empowered the attorney to institute cases and prosecute them on behalf of the respondent yet it did not authorise him to withdraw any case or enter into a compromise therein. The attorney was also not authorised to agree to the settlement of any dispute on the basis of special oath. By executing the said document, the respondent had authorised the attorney to prosecute cases in the usual manner. Since he had agreed to an unusual mode of settlement of dispute involved in the ejectment application, namely, decision of the ejectment matter on the basis of special oath, he could not do so without express permission of the respondent. It is not the case of the petitioner that the attorney had obtained such permission before making the proposal of special oath. In the circumstances, the learned Additional District Judge was right in holding that the respondent's attorney could not make the offer of special oath and, therefore, the ejectment application could not be dismissed on the basis of that oath.

3. It was also urged by learned counsel for the petitioner that the appeal before the learned Additional District Judge was not competent inasmuch as it was directed against a consent order. In this connection, reliance was placed by him on subsection (3) of section 24 of the Cantonment Rent Restriction Act, 1963 (before section 24 was substituted by the Cantonment Rent Restriction (Amendment) Ordinance, 1985 and subsection (3) of section 96 of the Code of Civil Procedure.

4. The respondent had sought eviction of the petitioner under section 17 of the Cantonment Rent Restriction Act, hereinafter referred to as the said Act. Appeal against the order of the learned Rent Controller was filed by the respondent under section 24 of the said Act. According to subsection (2) of section 24 any party aggrieved by an order passed by the Rent Controller could prefer an appeal to the appellate Court. The respondent could, therefore, take appeal before the learned Additional District Judge regardless of the fact that the order appealed from was based on special oath. Even if it is treated as a consent order, there was no bar to the filing of appeal because there is nothing in the said Act to suggest that subsection (2) of section 24 thereof did not apply to such an order. As for subsection (3) of section 96 of the Code of Civil Procedure, it lays down the manner in which an appeal is to be heard and determined. It has nothing to do with the right of appeal. As indicated above, subsection (2) of section 24 of the said Act deals with the right of appeal and it confers such right on a party who is aggrieved by any order passed by the learned Rent Controller. Subsection (3) of section 96 is, therefore, not relevant to the question of competency of the appeal preferred by the respondent. Even if it is assumed that subsection (3) of section 96 is also applicable to a consent order passed by the Rent Controller under the said Act, it will be of little avail to the petitioner because subsection (3) of section 96 does not bar appeal against a consent decree if it is alleged that such decree was not passed with the consent of any party or the person filing appeal was not party to the compromise. Faqir Ali Shah v. Sh. Nazir Hussain and another P L D 1980 Lah. 335; Talawand and others v. Fateh Din and others A I R 1918 Lah. 126; Muhammad Raza v. Ram Saroop and others A I R 1929 Oudh 385; Mst. Ummakulsum v. Ghulam Rasul Khan Burgri and another A I R 1929 Sind 32; S. Sivarama Iyer v. M.G. Sundararajulu Naidu and others A I R 1928 Madras 922 and Jagdish Narain v. Rasul Ahmad and others A I R 1952 Allah. 29 are some of the authorities in point.

5. The case of Faqir Ali Shah was a rent case. In that case, second appeal was preferred by an abstaining tenant on the ground that he was not party to compromise and was condemned unheard. The appeal was accepted and the case remanded. In the case of Talawand and others, it was held that where one of several plaintiffs agrees to be bound by defendant's oath the other plaintiffs are not bound by oath. View expressed in Muhammad Raza's case was that it was open to a party to a suit to appeal from the decree passed in the suit on the basis of compromise purporting to be on his behalf when the person verifying or admitting the said compromise had no authority to enter into it on his behalf. In the case of Mst. Ummakulsum, it was held that a person denying to be party to compromise can appeal. In the case of S.Sivarama Iyer, it was observed that a party who has not consented to a consent decree by his absentention from appearance can appeal from the ex parte decree. In the case of Jagdish Narain it was contended that no appeal lay against a consent decree. This argument was repelled in the following words:‑ "When the consent upon the basis of which a decree has been passed by the Court is itself challenged in the Court of appeal, it cannot be taken for granted that the decree was a consent decree. A consent decree must mean a decree validly consented to either by the party himself or by his duly authorised agent. If the question raised is that the agent who consented to the decree was not duly authorised, the question has to be decided and it cannot be prejudged by holding that because on the face of it there was a consent decree, no appeal lies to the appellate Court."

6. As explained above, while taking appeal to the learned Additional District Judge, it was alleged by the respondent that she was not party to the proceedings of special oath which resulted in the order passed by the learned Rent Controller. There was, therefore, no bar to the filing of the appeal by her.

7. Resultantly, I find no force in this writ petition. It is, accordingly, dismissed. Since the respondents were absent on both the dates on which this petition was argued by learned counsel for the petitioner, the parties are left to bear their own costs. A . A . Petition dismissed.