2013 PLP 1837 (CLC)

IBAD-UR-REHMAN LODHI, J.

By means of single order, I intend to dispose of the instant writ petition and the other three writ petitions viz. Writ Petition Nos.2005, 2006 and 2007 all of 2013, as common question is involved in all the matters.

2. In a suit for pre-emption, the plaintiffs-appellants by filing an agreement in between the parties to the suit prayed for the decision of the same on the settled terms of that agreement. In alternate, it was prayed that the plaintiffs-appellants may be allowed to produce additional evidence. The facture of execution of such settlement was straightaway denied by the respondents-defendants, which resulted into filing another application by the plaintiffs for getting the comparison of signatures and thumb-marks of Hakeem Malik Haqnawaz and by means of another application, the documents viz. agreement purported to have been arrived at in between the parties before a `Jirga' was prayed to be put to the relevant defendants for its admission. In addition to such petitions, another petition under Article 163 of Qanun-e-Shahadat Order, 1984 was also moved seeking decision of the suit on special oath.

3. The learned trial Court on 21-6-2012 dismissed all the petitions, which findings were maintained in revision which was dismissed by the learned Additional District Judge, Multan, on 7-2-2013; hence, this petition.

4. The learned counsel for the petitioners by making reference to the provisions of Order XXIII, Rule 3 of the Civil Procedure Code, 1908, has contended that 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. According to the learned counsel for the petitioners, the words "satisfaction of the Court" used in the said provision of law do create a necessity of some inquiry by the Court and such plea cannot be brushed aside summarily. The learned counsel further contends that the agreement placed before the courts-below for disposal of the suit on the basis of the terms arrived at therein was already acted upon in some other proceedings and the said proceedings were, decided by the forums, where these were pending in view of the terms of settlement arrived at in between the parties through the said agreement. The refusal on the part of the respondents-defendants with regard to the existence of such document is, thus, termed as mischievous and contumacious.

5. The learned counsel for the respondents has controverted the arguments raised by the petitioners' learned counsel and is of the view that the suit for pre-emption has to be decided on its own merits ignoring what has been allegedly arrived at in between the parties through the document purported to be introduced on record by way of additional evidence. The request for comparison of the signatures/thumb-impression of Hakeem Malik Haqnawaz with his admitted signatures/thumb-impression is also controverted by the respondents.

6. After hearing the learned counsel for the parties and going through the record, I am of the view that in view of the language used in Order XXIII, Rule 3 of the Civil Procedure Code, 1908, in any suit, when application intimating the settlement in between the parties is brought before the court, it is incumbent upon the court to satisfy itself as to the execution and existence of compromise. In any suit, when a question arises as to whether or not, there had been a compromise in between the parties, the same had to be decided after a regular inquiry by taking evidence and rejection of such application summarily is not proper. Refusal to enter into such inquiry would in fact militate against the letter and spirit of the provision contained in Order XXIII of Rule 3 of the Civil Procedure Code, 1908. Under the said provision of law, recording of compromise was not a mere formality but a mandatory one, as such, order has been made appealable in terms of Order XLIII Rule 1(m) of the Civil Procedure Code, 1908.

7. The learned counsel for the petitioners in support of his contentions has rightly placed his reliance on Syed Abdul Baqi v. Syed Nisar Ahmad Shah and others (NLR 1981 UC 642), Messrs Muhammad Ilyas and Sons Ltd. v. Abu Ahmad Khan and 2 others (1981 CLC 1257), Rana Abdul Ghafoor v. Government of Sindh and others (PLD 1994 Karachi 52), Farid Gul and others v. Gul Mast (1997 MLD 2180) and Mst. Khurshid Begun v. Mir Muhammad and 8 others (1990 CLC 1614). In all such cited cases, holding of a regular inquiry in such circumstances has been held a mandatory step to be taken by the court moved in this regard.

8. In the instant case, the courts-below have not exercised their jurisdiction vested in them and have committed illegality in dismissing the applications moved by the petitioners. The order dated 21-6-2012, passed by the learned Civil Judge, as well as, the judgment dated 7-2-2013 are, therefore, declared as illegal and the same are set aside.

9. The learned first appellate court before whom application for decision of the suit on the basis of a settlement was moved, is directed to hold a regular inquiry as to the execution and existence of the compromise in between the parties by granting ample opportunities to both the sides in order to produce their respective versions and then to decide the same by means of a speaking order.

10. Writ petition stands accepted. AG/W-5/L Petition accepted.