1987 PLP 623 (CLC)

(4) Whether the plaintiff has no cause. of action against the defendant? O.P.D. (5) Whether the plaintiff has waived his right of pre‑emption by his own conduct? O.P.D. (6) Whether the defendant has effected any valid improvement on the suit land? If so, when to what extent and with what effect? O. P. D. (7) Relief. The case was at the stage of recording evidence when on 11‑5‑1986 respondent plaintiff offered; On this the petitioner/ defendant made following statement: Thereafter, the learned trial Court passed following order:‑ Feeling aggrieved of this judgment and decree, the petitioner filed appeal before the learned District Judge, Vehari, which was dismissed on 29‑9‑1986 on the ground that the judgment and decree appealed against being consent decree, the appeal was not maintainable under subsection (3) of section 96, C.P.C. hence this petition.

2. The learned counsel for the petitioner submits that the statement given by the petitioner that the suit be decreed in lieu of Rs.l,000 was not within the scope of oath and as such the trial Court could not have decreed the suit without recording evidence and give its finding on issues other than issues Nos. 2, 3 and 6; that the decree passed by the trial Court does not amount to consent decree, so appeal filed by the petitioner was quite maintainable. Reliance has been placed on case Ghulam Abbas and others v. Faqir Hussain 1983 C L C 99, Haji Fazal Muhammad v . Chaudhry Muhammad Saeed P L J 1983 Lah. 63 1 Muhammad Hasham Khan v. Muhammad Jan Khan A I R 1934 Lah. 67 and Hakim Allah Bakhsh v. Ahmad Din 1976 S C M R 519.

3. I have considered the submissions made by the learned counsel for the petitioner with care. I have not been able to agree with trim. I find that the case‑law relied upon by the learned counsel proceeds on different facts and is not applicable to this case. The expression; voluntarily made by the petitioner/ defendant before the trial Court is of great significance. It seems to me that the decree passed by the trial Court in the circumstances of the case is a consent decree within the meaning of section 96(3), C.P.C. for the reasons that the '4 respondent/ plaintiff had filed suit for possession by pre‑emption; that by offering to pay the sale price and improvements as stated by the petitioner/ defendant on oath he had virtually agreed to the grant of decree in his favour on payment of the sale price and improvements as stated by the petitioner on oath; that by staring before the trial Court that; The petitioner/ defendant also consented to the grant of decree in favours of respondent /plaintiff on payment of Rs.1,200 to him and that aforesaid expression made by the petitioner/ defendant has also rendered issues 1, 4 and 5 redundant. So, it is a decree that can be said to have been passed with the consent of the parties and the petitioner/ defendant has no cause to fight in the Court. For all these reasons, I am of the view that appeal filed by the petitioner against judgment and decree, dated 11‑5‑1986 of the trial Court was rightly dismissed by the learned District Judge.

4. For what has been said above, there being no merit, the petition is dismissed in limine. H.B.T./642/L Revision dismissed.