P L D 1980 Supreme Court 45 (PLP)

NASIM HASAN SHAH, J.-This petition for leave to appeal is directed against the order dated I-9-1979 of the Lahore High Court, Lahore, dismissing the Inter-Court Appeal (I. C. A. 222/79) filed by the petitioner, in limine. The facts which form the background put very briefly are that the petitioner, Muhammad Aslam, had obtained Property No. S-49-R-62, Chamberlain Road, Lahore, through open public auction. Malik Mohammad Azam, respondent No. 6 herein, was seeking transfer of this property in his own right. Both the parties being aggrieved by certain orders passed by the Settlement Department approached the High Court by filing separate writ petitions (that of Malik Mohammad Azam, respondent No. 6, being W. P. No. 1097-R of 1978; and that by Mohammad Aslam, petitioner, being W. P. No. 318-R of 1979). Both these writ petitions were heard together and on the date of hearing Mohammad Aslam and Malik Mohammad Azam agreed before the learned Single Judge of the High Court by making statements before him on oath that the property in dispute may vest in Mst. Akhtari Begum, respondent No. 7 herein, who is Mohammad Aslam's ex-wife and Malik Muhammad Azam's real sister; and that she shall have absolute and full proprietary rights therein and that after her demise the property shall vest in her heirs. The learned Judge after recording the statements of the parties passed an order allowing the compromise and further ordering that henceforth the Property No. S-49-R-62, Chamberlain Road, Lahore shall vest free of costs absolutely in Mst. Akhtari Begum and shall have full proprietary rights therein except that she shall not sell away the property and the same shall vest in her heirs after her demise. Both the writ petitions were disposed of in these terms by the learned Single Judge vide his order dated 4-6-1979. Although the case was disposed of by agreement, Mohammad Aslam nevertheless filed an Inter-Court Appeal (I.C.A. 222/79) under section 3 of Law Reforms Ordinance, 1972 against it on the ground that the compromise was against the provisions of Order XXIII, rule 4 of the Civil Procedure Code. The appeal, however, was dismissed on reasoning that it was not competent in view of the compromise arrived at between the parties. It was observed that the compromise was duly recorded in the shape of settlement of the petitioner and Malik Mohammad Azam, who were contesting the two Writ Petitions Nos. 1097-R/78 and 318-R/79 and the compromise was recorded by mutual agreement of the parties to which they consented. It was held that under the law, such a compromise cannot be challenged in appeal because no appeal lies from an order or a decree based on compromise. This petition for leave to appeal is directed against the last mentioned order of the Division Bench of the Lahore High Court which was passed on 1-9-1979. It may be mentioned that before moving (on 28-11-79) this petition for special leave to appeal, the petitioner moved two civil miscellaneous applications before the High Court '(C. M. 3/79 and C. M. 7401/79 in W. P. 318-R/79) to evade the consequences of the order of the High Court. In these applications, it was alleged that respondent No. 6, after the dismissal of the petitioner's Inter-Court Appeal, was trying to sell property in question so as to deprive his children, born from his union with Mst. Akhtari Begum, of their inheritance after her demise. He, therefore, prayed the Court to recall, vary or modify the compromise judgment dated 4-6-1979 in Writ Petitions Nos. 1097-R/78 and 318-R/78. He also prayed for restoration of his possession. The learned Judge before disposing of the said two miscellaneous applications again recorded the statements of Mst. Akhtari Begum (respondent No. 7), her brother Malik Mohammad Azam (respondent No. 6), and another brother Mohammad Akram, who all denied the allegations that they had any intention of disposing of the property. Mst. Akhtari Begum undertook to retain the property during her lifetime and to leave it for her children from the petitioner herein Mohammad Aslam, on her demise and the two brothers further assured the Court that they would see to it that the property was not disposed of by Mst. Akhtari Begum in her lifetime so as to deprive her children from Mohammad Aslam of their inheritance. As for the request made by Mohammad Aslam that the order passed on the basis of compromise allowed dated 4-6-1979 should be recalled and the two writ petitions W. P. 1097-R/78 and W. P. 318-R/79 may be disposed of on merits, it was rejected by the learned Judge with the following observations : "I am afraid the contention of the learned counsel for the petitioner Muhammad Aslam is without force or substance whatsoever. Muhammad Aslam had entered into the compromise of his own freewill which was recorded and was contersigned by his counsel in accordance with which the order dated 4-6-1979 was dictated and passed in his and his counsel's presence. The compromise itself was in the ultimate interest of his own children out of the wedlock his ex-wife Mst. Akhtari Begum. 1t is too late in the day for Muhammad Aslam now to change his mind and try to go over what he had voluntarily agreed and which was obviously in the interest of his own previous wife and the two children. Only avarice can be a cause for change of mind and that can hardly furnish a ground for recall of an order passed on the consent of the parties.' Both the applications were, therefore, dismissed on 20-11-1979. Reverting back to petition for special leave to appeal filed. in this Court, Mr. M. Farani argued that the appeal was not filed under the provisions of the Civil Procedure Code so as to be barred ~ under the provisions of subsection (3) of section 96 but under section 3 of the Law Reforms Ordinance and that in any case even under Civil Procedure Code the order of the learned Single Judge is an appealable order under Order XLIII, rule l(m) of the Civil Procedure Code. He further contended that a serious question of law arises in this case, namely, whether the High Court could have passed an order disposing of writ petition on the basis of the compromise. According. to the learned counsel of writs of mandamus and certiorari being mandatory and declaratory the High Court does not have the warrant under the aforesaid jurisdictional provisions to dispose of the matter on the basis of a compromise between the two contesting parties. In this connection, he relied upon the following observations of Cornelius, J. in the case of Sh. Maqbool Elahi and others v. Khan Abdul Rehman and others (P L D 1958 S C (Pak.) 96 at p. 103 "We must not be thought to say anything in approval or otherwise of the practice of disposal of writ petitions by the method of executory compromise. That is a matter which has not been agitated before us and we prefer not to express any opinion upon it." It is submitted that this matter was agitated before the Inter-Court Appeal Bench and ought to have been attended to and disposed of. It may be that the appeal, before the Division Bench under section 3 of Law Reforms Ordinance, 1972 would not attract the provisions of subsection (3) of section 96 of the Civil Procedure Code but there would be nothing wrong with the order of the learned Judges of the Division Bench refusing to proceed with an appeal against the order of a Singh Judge passed with consent of the parties if the order is otherwise fair, just and proper. Another reason is that when a consent order is passed the parties have indeed nothing to appeal against. This brings us to the other question raised by the learned counsel for the petitioners that the learned Single Judge could not have disposed of two writ petitions on the basis of a compromise between the parties. The learned counsel for the petitioner was, however, unable to point out any bar to this course being adopted in the provisions of Article 199 of the Constitution. When Cornelius, J. (as he then was) made the aforesaid remarks in Sh. Maqbool Elahi and others v. Khan Abdul Rehman and others, the writs which the High Court could issue under the 1956 Constitution, as it was then in force, were known by their traditional names and an argument that writs cold issue in exactly the same manner as the prerogative writs in England could, was perhaps be possible. But the writ jurisdiction now exercised by the High Court is as contained in Article 199 of the Constitution of 1973 to be construed and confined in accordance with its terms. Besides the jurisdiction exercised being of a civil nature the application of the rules of procedure which advance the cause of justice unless expressly prohibited can safely be adopted. Prima facie there can be no objection to the disposal of a writ petition on the basis of a compromise between the parties. However, we do not think that this is a fit case for us to examine this question in any detail because we consider that the parties having voluntarily entered into a compromise, which was fair to all concerned, this is not a fit case for grant of leave to appeal. The result. is that this petition fails and is dismissed hereby. , s. A. H. Petition dismissed.