' Review of the judgment/order dated 23-1-2003 of this Court is sought on the ground that the learned counsel representing the acquiring Department was not authorised to make conceding statement in favour of appellant. The learned Deputy Attorney General drew the attention of this Court to various letters written by the acquiring Department to the learned counsel directing him to contest the appeal and prayed that the impugned judgment be reviewed and the appeal be decided on merits.
2. I am afraid the argument of the learned Deputy Attorney-General has no force. Review of the judgment under section 114 read with Order 47, C.P.C. Can be sought on discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking review or he could not produce the same at the time when the decree was passed or order made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason. The ground taken for review that the learned counsel was not authorised by the acquiring Department to concede the prayer of the appellant is no ground on which the impugned judgment/order can be reviewed. In a similar case titled as Mobile Eye Service of Pakistan, Karachi v. Director Social Welfare/ Registration Authority, Government of Sindh, Karachi and another PLD 1992 Kar. 183 it was held:- "We would like to point out that, none of the grounds enumerated in Rule 1 of Order XLVII, C.P.C., can be found to exist in the present case. Mere failure on the part of the counsel to disclose that he holds no authority from his client to enter into a compromise on his behalf, can hardly provide a ground for review of a consent order based on such compromise. In such a case, there would neither be a mistake or error apparent on the face of the record nor would there be discovery of any new material calling for review of the order."
'Therefore, the petition for review is dismissed in limine.
3. The learned Deputy Attorney General also made prayer that in case the review petition is not maintainable then the petition in hand be treated as application under section 12(2), C.P.C. For setting aside the impugned judgment and order because the same has been obtained through misrepresentation. This argument has also no substance. The application in hand cannot be converted into application under section 12(2), C.P.C. For the reasons firstly that an application for review which lies under Order 47 is entirely different remedy whereas application under section 12(2), C.P.C. Is a separate remedy. Application under section 12(2) lies on the plea of fraud, misrepresentation or want of jurisdiction. In the case in hand, there is iteither any allegation of fraud nor the question of jurisdiction of this Court has been raised. The only ground for treating the application in hand under section 12(2), C.P.C. Is that there was misrepresentation. I am afraid this ground is also not available to the petitioner for the reasons, firstly; that there was no specific bar for the learned counsel to effect compromise, secondly the learned counsel had been authorised through his Wakalat Nama to make such a statement. Distinction between the fraud and misrepresentation is one of knowledge and intention, for whereas fraud proceeds on the basis of a fact or assertion or omission to assert such fact with knowledge as to its falacity, in the context of misrepresentation the assertion or its omission may lack both knowledge or intention.
4. The word misrepresentation has been defined by Ballentine's Law Dictionary, third edition at page-807 to mean:-- "The statement of an untruth. A misstatement of fact which if accepted leads the mind to an apprehension of a condition other and different from that which exists."
5. There is no misrepresentation in this case because the learned counsel representing the petitioner in presence of the learned Deputy Attorney General stated that the acquiring Department was willing t) pay Rs,6,000 per Marla compensation to the appellant. The learned counsel for the appellant was satisfied with such a statement and even the learned Deputy Attorney General who was present in Court did not grudge the above proposition, therefore, order dated 23-1-2003 was passed.
6. In a similar case titled as Messrs Azhar Asia Shipping Agency and another v. Ghaffar Corporation P.E.C.H. Society, Karachi PLD 1995 Karachi 205 order was passed by the learned Court on the basis of compromise between the parties, an application under section 12(2), C.P.C. Was moved praying that order passed by the Court on the basis of compromise was not authorised and defendant's counsel had entered into compromise on behalf of defendants without authority and on the basis of fraud and misrepresentation, it was held:-- "A compromise entered into by the Advocate on behalf of his client in a case where such authority is invested in him is very much binding on the party unless it is shown that the same is entered 'nto by the Advocate for some purposes not contemplated therein, or for some extraneous reasons, which is not the allegation in the present case. In these circumstances, we are of the view that the said compromise is very much binding on the appellant and the present appeal, therefore, is without any merit and the same is dismissed summarily alongwith miscellaneous application."
7. Similarly in Mobile Eye Service of Pakistan, Karachi v. Director Social Welfare/Registration Authority, Government of Sindh, Karachi and another PLD 1992 Kar. 183 it was held:-- "In this regard it may be pointed out that the only allegation made in the present application is that, Mr. Hassan Akbar had no authority from respondent No,1 to enter into the said compromise on her behalf. But, there is nothing in the application even to remotely suggest that Mr. Hassan Akbar, while giving his consent, was motivated by any consideration of fraud, or that he had colluded in any manner with the petitioners to give his consent to .The said compromise. There is also nothing to point out that any misrepresentation was made by Mr. Hassan Akbar, notwithstanding the fact that he had no authority to enter into a compromise on behalf of respondent No,1, since Mr. Hassan Akbar's authority to enter into a compromise on behalf of his client was not questioned at the relevant time. Consequently, in our opinion, reference to the provisions of section 12(2), C.P.C. Is misconceived and such provisions are not attracted to the facts of the present case."
8. In Mst. Dilbar Hamid v. Dr. Ghulam Bheekh Khan and others 1997 SCM R 610 in almost similar situation when the party had filed review petition which had been dismissed, it filed application under section 12(2), C.P.C. Before the august Supreme Court of Pakistan, but the said application was dismissed with the observations:-- "Beside the fact that no material is available in support of the contention, the application under section 12(2), C.P.C. Simply does not lie after dismissal of the review petition by this Court."
9. Since I have already in the above paragraph ordered for dismissal of review petition, therefore, application under section 12(2), C.P.C. Would not lie and the same is dismissed in liming.
Review petition and .