' SARDAR SAID MUHAMMAD KHAN, . C.J.---This appeal has been directed against the order of the High Court dated 8-5-1999, whereby the revision petition filed by the appellants, herein, was dismissed.
2. The brief facts of the case are that a declaratory suit seeking the cancellation of sale-deed dated 26-3-1995 regarding the property in dispute was filed by the plaintiffs-appellants, herein, in the Court of Sub-Judge, Muzaffarabad. During the pendency of the suit, an application was filed by the parties before the Sub-Judge on 15-6-1996 for the early disposal of the suit on the basis of a compromise entered into by them. In pursuance of the said application, the statements of the counsel for the appellants, and respondent No.1 were recorded. However, before the decree could be passed on the basis of the compromise deed, an application was submitted by respondent No.1 in the trial Court on 22-6-1996 alleging that fraud had been committed on him and, thus, he sought that compromise deed be annulled and no decree should be passed on the basis of the same. The defendant-respondent in his application for annulling the compromise deed stated that in fact the property in dispute was purchased by him for a consideration of Rupees ten lac but in the sale- deed the consideration was mentioned only to the tune of Rupees five lac; the remaining amount was to be paid to him at the time of transfer of the possession of the house to him. It was further alleged by him that subsequently, he went to Saudi Arabia and sent Rupees five lac to one Riaz from there and the said amount was received by the plaintiffs-appellants, herein, as outstanding consideration of sale. At the time of compromise it was agreed that the aforesaid Rupees five lac which the appellants had received from Riaz would be returned to the defendant-respondent after the filing of the said compromise but subsequently, they refused to pay back the said part of the consideration to him. The learned. Sub-Judge after taking objections from the appellants, herein, instead of passing a decree on the basis of compromise, framed issues on the basis of the said application.
3. The case of the appellants, herein, before the Courts below was that after recording the statements of the parties on the basis of compromise, the trial Court was bound to pass a decree on the basis of the compromise instead of framing the additional issues in the case. An appeal was filed by the appellants, herein, before the District Judge against the order of the trial Court faming issues which was dismissed; the revision petition filed to the High Court also failed.
4. It has been contended by Kh. Shahad Ahmad, Advocate. The learned counsel for the appellants, that the High Court has committed an error in holding that the trial Court was not bound to pass a decree on the basis of compromise because the compromise entered into between the parties had not been 'recorded' by the trial Court. He has argued that by expression 'recording the compromise' employed in rule 3 of Order XXIII of C.P.C., means the recording of the statements of the parties and nothing else. Thus, he has contended that the observation of the High Court that the compromise was not recorded is not correct and is belied by the record. The learned counsel has also submitted that in case of any grievance against the compromise decree, the aggrieved party may file a separate suit for setting aside the same but cannot insist for framing the issues after recording the compromise or for that matter the statements of the parties. The learned counsel for the appellants has relied upon following authorities in support of his contentions:-- ' In case reported as Messrs Country Products Export Ltd.. v. Messrs Bawany Sugar Mills Ltd. PLD 1968 Karachi 115, it has been held that the Courts are under duty to record lawful compromise and pass a decree on the basis of the same even if the compromise included the conditions which were not initially within the scope of the suit.
' In case reported as Abad Ali v. Muhammad Siddique PLD. 1968 Lahore 1218, it was held that a Court is bound to record a compromise after its satisfaction that the suit has been lawfully compromised'; and thereafter, pass a decree on the basis of the same.
' In case reported as Mirza. Hussain Yar Beg v. Radha Kishan AIR 1935 All. 137,it has been held that it is mandatory for the Court to record a compromise if it is proved that the suit has been adjusted through a lawful agreement. It has been further observed that after recording the same, the Court is bound to pass a decree on the basis of such compromise and that there is no scope to enter into an inquiry of the disputed question under rule 3 of Order XXIII, C.P.C.; it has to proceed to pass the decree on the basis of compromise.
5. In reply, Mr. Abdul Rashid Abbasi, Advocate, the learned counsel for. Respondent No.1, did not controvert the argument that the High Court was not correct in observing in the impugned judgment that the compromise was not recorded, despite the fact that the statements of the parties were recorded. However, the learned counsel has contended that the proviso' II to rule 3 which was introduced in Punjab and has also been adopted in Azad Kashmir, overrides the provisions contained in rule 3 of Order XXIII, C.P.C. Thus, according to the learned counsel, the orders passed by the Courts below refusing to pass a decree on the basis of compromise do not suffer from any legal defect. He has further argued that the jurisdictional value of the suit has been incorrectly fixed in the plaint and in fact the same was Rupees twelve lac, the market value of the suit-land. Thus, according to the learned counsel, the suit was not triable by the Sub-Judge and no compromise decree could be passed by him. He has argued that irrespective of the fact that any decree was passed on the basis of compromise or not, the objection regarding the jurisdiction of the Court can be raised even if the compromise has been recorded within the meaning of rule 3 of Order XXIII, C.P.C. He has further submitted that the question of jurisdiction was not raised by the respondent in any of the Courts below but all the same this being a law point can be raised for the first time in this Court. He has also argued that the expression " written in the compromise deed under the name of Raja Muhammad Bashir, implies that at least he (Muhammad Bashir) had some reservations about the compromise. Thus, he has argued that the compromise should, not have been recorded by the trial Court. The learned counsel for the respondent has referred to the following authorities in support of his contentions:-- ' In case reported as Govendaswa mi Kadavaran v. Kaliaperumai Munuyathiriyan AIR 1921 Madras 696, a revision petition and an appeal were filed by the aggrieved persons. The question which came up for consideration before the High Court was as to whether the appeal was competent against the compromise decree and if the answer is in negative, whether the revision petition was competent in which the question of jurisdiction can be raised. There was difference of opinion between the learned members of the Bench as to whether the same could be raised in case of compromise decree. However, both the revision petitions and the appeal were dismissed in view of the difference of opinion between the learned members of the Bench. Therefore, the aforesaid authority does not support the contention of the respondent that the question of jurisdiction can be raised in case of compromise decree, especially so when one of the learned members of the Bench has observed that even if there was lack of jurisdiction, he was not prepared to allow the party concerned to raise the question of jurisdiction in view of its dishonest attitude, meaning thereby that they could not raise the objection after entering into a compromise.
' In case reported as Dwarka Prasad v. Krishna Chandra AIR 1939 Patna 254, it was observed that there is no distinction between the recovery of possession and confirmation of possession; thus, in a suit for setting aside the sale in execution and confirmation of possession, the valuation for the purpose of jurisdiction would be the same as for the recovery of possession, i.e. The market value of the suit-land.
' In case reported as V.N. Alagar Aiyangar v. Srinivasa Aiyangar AIR 1925 Madras 1248, it was observed that the declaratory suit that the alienation was not binding as being sale out of the joint property of Hindu family, must be treated as a suit for the cancellation of the deed and ad valorem court-fee should be paid on the same. He has also referred to the cases reported as Kh.
Muhammad Ayub v. Mirza Tazarrat Hussain 1999 CLC 840 and Sardar Aftab Ahmad v. Maj. (Retd.)
Muhammad Aftab Ahmad 1999 MLD 187, in support of his contention that a law point which goes to the root of a case can be raised for the first time before this Court.
6. We have given due consideration to the matter. It may be pointed out that the authority cited by the learned counsel for the respondent that the question of jurisdiction can be raised even in case of a compromise does not help his contention, because there was difference of opinion between the learned members of the Bench in case reported as Govendaswami Kadavaran v. Kaliaperumal Munayathiriyan AIR 1921 Madras 696, as discussed above. It may be observed that it is a settled principle of law that while passing a compromise decree, the Court does not deal with the merits of a suit; it decides the same on the basis of compromise. It may also be pointed out that the question of jurisdiction was for the first time raised by the respondent in this Court. The authority cited by the learned counsel for the respondent that a legal question can be raised for the first time in this Court was in cases where there was no compromise and the suits were decided on merits; besides the said observation was made in the context of the party who had filed appeal and not in context of a respondent. In the instant case, the matter pertains to a compromise decree and, thus, the Court was bound to pass a decree on the basis of the same under rule 3 of Order XXIII, C.P.C.; once it is found to the satisfaction of the Court that the matter has been adjusted through a legal compromise, the Court is bound to record the same and to pass a decree on its basis. After recording the compromise, as has been done in this case, it was not open to the Court to refuse to pass a decree according to the compromise deed merely because a party had resiled from the agreement for one reason or the other, as has been laid down in the case reported as Mirza Hussain Yar Beg. v. Radha Kishan AIR 1935 All.
137. It may also be observed here that in the instant case, according to the valuation fixed in the plaint, thp trial Court had the jurisdiction to try the suit. The objection whether the jurisdictional value was correct or not being a question of fact or mixed question of fact and law could not be opened after the suit was adjusted by the parties through a lawful agreement. If a party has any grievance against such decree, it may, if so advised, seek the relief in appropriate forum through appropriate means and not by filing an application in the Court after recording of the compromise by it. It may be reiterated here that the phraseology employed in rule 3 of Order XXIII, C.P.C., does not permit to set aside a compromise deed on an application after the same has been recorded by the Court.
7. The contention of the learned counsel for the respondent that the proviso H to rule 3 of Order XXIII Would override the provisions of rule 3 is without any substance, because the perusal of the said proviso shows that it merely stipulates that if the parties file a compromise deed in a suit, the Court may fix a date for recording the same and may record the statements of the witnesses who are present; obviously, the proviso does not deal with the conditions which govern the passing of a compromise decree under the aforesaid provision.
8. So far as the argument that the note in the compromise deed under the name of Raja Muhammad Bashir, respondent, shows that he had reservation about recording of the compromise deed is concerned, that has no substance because the so-called note is an ambiguous expression and does not convey any reservation regarding the compromise; the same cannot be attributed such means, especially so when no such point was raised in any of the Courts below or in this Court.
In the light of what has been stated above, we accept the appeal, set aside the impugned orders of all the Courts below, and direct that the trial Court shall pass the compromise decree in favour of the plaintiffs-appellants according to law.