2005 PLP 574 (MLD)

Date of hearing: 3rd December, 2004. The order dated 25‑9‑1997 of the learned revisional Court has been assailed in this Constitutional petition, which arises out of the following circumstances.

2. Through registered sale‑deed dated 25‑10‑1995, the petitioner purportedly, father‑in‑law, of respondent No.1, transferred an area measuring 38 Kanals, 16 Marlas in favour of the respondent No.

1. The petitioner, however, filed a suit for declaration seeking cancellation of the registered sale‑deed dated 25‑10‑1995, on the ground of fraud. The suit was, however, withdrawn and was accordingly dismissed vide order dated 8‑5‑1996, of the learned trial Court The petitioner made an application under section 12(2) of the Code of Civil Procedure for recalling the order dated 8‑5‑1996 which was allowed vide order dated 24-9‑1996 and the case was fixed for filing of the written statement by the defendants‑respondents. The order dated 24‑9‑1996 was challenged by respondent No.1 in a revision petition. The parties, however, compromised the dispute through a written document and an application was made before the learned revisional Court on 2‑12‑1996, on 'which date the respondents made a statement that in accordance with the compromise Mark "A"; the parties had settled their dispute and, therefore, he (the respondent) did not want to pursue the revision petition. Accordingly, vide order dated 2‑12‑1996, the revision petition of respondent No.1 was dismissed.

3. On the same day i.e. 2‑12‑1996, a joint application was made by the petitioner and respondent No.1, before the learned trial Court, in which it was stated that the parties wanted to make a statement in accordance with the compromise and it was prayed that their statement should be recorded. On 5‑12‑1996, the petitioner also made an application before the learned trial Court in which the factum of compromise was reiterated and it was prayed that the statement of the Parties may be recorded in accordance with the compromise and the matter be disposed of. On this application, the statement of the petitioner was recorded to the effect that he had compromised the dispute with the respondents. The learned trial Court, however, noted that the relevant file was not before the said Court. It was, however, directed that the main file may be put up. The matter, however, lingered on and finally vide order, dated 16‑4‑1997, the suit of the petitioner was dismissed on the ground of his application dated 5‑12‑1996 and the statement dated 5‑12‑1996 referred to above. The petitioner filed a revision petition on 24‑5‑1997, which was dismissed vide order dated 9‑6‑1997.

4. The learned counsel for the petitioner submits that after the dismissal of the revision petition, filed by the respondents, the parties had jointly requested the learned trial Court to record their statement in accordance with the compromise and this was the prayer made by the petitioner in his application dated 5‑12‑1996. Therefore, instead of recording the compromise between the parties as contemplated by rule 3 of Order XXIII of the Code of Civil Procedure and disposing of the suit in terms of the compromise of the parties, the learned trial Court proceeded to dismiss the suit which has occasioned manifest miscarriage of justice and will involve the parties in unnecessary litigation.

5. The submissions made by the learned counsel for the petitioner have been considered. Perusal of the record shows that the parties had settled their dispute through a written compromise when the revision petition filed by respondent No. 1 was pending before the learned revisional Court and a copy of the said compromise was appended to the application, made before the learned revisional Court. The effect of the dismissal of the revision petition of respondent No. 1 was that the suit filed by the petitioner became pending and was to be determined in accordance with the law. The proper course for the learned trial Court was to proceed under Order XXIII, rule "3 of the Code of Civil Procedure to satisfy itself as to the lawful adjustment of the suit within the contemplation of the aforesaid provision of law and if the conclusion was to the contrary, then to proceed to decide the suit. I have perused the joint application filed by the parties on 2‑12‑1996 and the application filed by the petitioner on 5‑12‑1996. In the application jointly filed by the parties, the prayer was for recording the statement of the parties. However, in the application dated 5‑12‑1996 in paragraph‑1, the petitioner had stated that in accordance with the compromise dated 1‑12‑1996, the petitioner did not want to prosecute the suit. However, the prayer made in this application was in the following terms:‑‑ The averment in para. 1 of this application read with the prayer paragraph clearly established that the petitioner did not want to pursue the suit and desired its disposal in accordance with the terms of the compromise which had already been arrived at between the parties. The statement of the petitioner recorded on 5‑12‑1996, does not show that the petitioner intended to withdraw the suit unconditionally by ignoring the compromise. Therefore, neither from the joint application of the parties dated 2‑12‑1996, nor from the application dated 5‑12‑1996 moved by the petitioner or his statement dated 5‑12‑1996, it could be assumed that the petitioner wanted to withdraw the suit. In fact as noted above, both the parties at the stage of moving the joint application dated 2‑12‑1996, were insisting on disposal of the matter in accordance with the terms of the compromise.

6. Therefore, the impugned judgment of the learned trial Court proceeds on a totally mistaken assumption as to material fact. Likewise the learned First Appellate Court also did not comprehend the controversy and proceeded on the same assumption on which the learned trial Court had proceeded. It is clearly a case in which the learned two Courts, in dismissing the suit of the petition exceeded their jurisdiction. It may also be noted here that the petitioner made an application for treating the revision petition as appeal with an application for condonation of delay. It was redundant because an order dismissing the suit as withdrawn is not an appealable order and, therefore, only a revision petition was competent.

7. For what has been stated above, the judgments and decrees of the learned two Courts are declared as without lawful authority and of no legal effect with the result that the suit of the petitioner and the two applications one jointly moved by the parties dated 2‑12‑1996 and the other moved by the petitioner dated 5‑12‑1996, shall be deemed to be pending to be decided afresh in accordance with law. It may be noted for the purpose of clarification that if the learned trial Court is satisfied of the lawful adjustment of the suit, through a compromise, it shall be duly recorded as required by rule 3 of Order XXIII of the Code of Civil Procedure and a decree shall follow accordingly. If the lawful adjustment of suit is not found to the satisfaction of the learned trial Court, the suit of the petitioner shall proceed in accordance with law No order as to costs. M.H./M‑801/L Case remanded.