' This order deals with and disposes of two appeals (S. A. Os. Nos. 420 and 421 of 1978) filed by Muhammad Ishaq and Sher Muhammad tenants under subsection (4) of section 15 of the West Pakistan Urban Rent Restriction Ordinance VI of 1959 against orders on appeal of learned appellate authority (District Judge, Lahore) dismissing their appeals to challenge order of their eviction passed by learned Rent Controller, Lahore.
2. Feroze Din (landlord) respondent in both appeals filed two separate applications against Muhammad Ishaq appellant in S. A.
0. No, 420 of 1978 and Sher Muhammad appellant in the next appeal (S. A.
0. 421 of 1978) for order of their ejectment from the shops in their possession on the solitary ground that the respondent required in good faith the shops in question for his personal use and occupation. The appellants filed written statements repudiating the assertion of the respondent and contended that the applications were mala fide and designed at securing increase in the rent.
The shops were originally leased to the appellants by the respondent at rental of Rs, 50 per mensem each which was raised to Rs, 80 per mensem and again to Rs, 100 per mensem. The appellants had declined to oblige the respondent for further increase in the rent at the rate of Rs, 150 per month. Necessary issue was settled by learned Controller for enquiry. Some evidence was also examined on the side of the respondent. On 31-1-1978, the appellants recorded their statements before learned Rent Controller that the dispute with the respondent had been settled through a compromise. They will part with the possession of the shops by or on 30-6-1978 on payment of Rs, 4,000 each by the respondent. The statements were duly signed by the appellants, their counsel and the respondent. Order of ejectment was thus passed by learned Controller in both cases in terms of compromise between the parties. Subsequently, the appellants filed separate applications for review before learned Controller raising several contentions against validity in law of the order of their ejectment. The appellants also filed appeals before learned District Judge to challenge order of learned Controller. It was argued before learned District Judge (penultimate para. Of the judgment) that the compromise was effected in an atmosphere of confusion. It was against the wishes of the appellants and opposed to public policy and the terms of the compromise were also not explained to the appellants before their signatures were obtained. The appeals were dismissed in limine by learned District Judge for the reason that decrees (orders) passed with consent of the parties were not open to challenge in appeal. As stated from the bar applications for review were rejected by learned Rent Controller in view of order of learned District Judge dismissing the appeals.
3. The question of competency or otherwise of appeals was argued at length by learned counsel for both sides. The normal rule is that consent decree operates as estoppel. By consenting to the settlement of the controversy by means of a compromise, the parties give up the right of appeal against such an agreement and the consent decree (order) is binding on the parties. The real reason why an appeal against the decree by consent does not lie is that there is nothing to appeal about. A consent decree can be questioned by a separate suit on any ground that would invalidate an agreement. It may be stated here that the appellants had also filed suits to challenge validity of the order of their ejectment based on their consent but the suits were dismissed by Mr. Muhammad Aslam Bhatti, learned Civil Judge, Lahore, on 27-7-1978 for the reasons that the suits which were filed after five months were afterthought, the appellants would not have received compensation if they had not consented voluntarily to the impugned order and the suits were barred under section 15(5) of the Ordinance. It was represented on the side of the appellants that observation of learned Civil Judge that the appellants had received compensation in consideration of vacation of the shops by them within the period specified in their statements before learned Controller was factually incorrect.
On a careful consideration of arguments addressed at the bar I am led to the view that it is a sweeping proposition to say that in no case appeal is competent to challenge consent decree.
Appeal to challenge such decree is competent when a party denies the comprise or alleges that the compromise was vitiated by misrepresentation and coercion etc. A large number of authorities were cited on both sides. However, following precedent cases only :
(i) Mo/vi Zaheer-ul-Saeed Alvi v. R. S. Seth Lachhmi Narayan AIR 1931 P C 107.
(ii) Dtvarkanath Chakra Barti Chaudhary v. Atul Chandra Chakra Barti Chaudhary AIR 1928 Cal.
108.
(ii) Mausell & Co. Ltd. v. Ghanshyamdas AIR 1935 Cal.
231."
' To my mind are closer to the point under discussion. In Zaheer's case, it was contended before their Lordships of Privy Council that there had in fact been no consent to the judgment of learned Judicial Commissioners subject-matter of appeal before their Lordships and that the statement to that effect was a mistake. The contention was entertained by their Lordships and the case was remitted to learned Judicial Commissioners for report on the assertion made by the appellants before their Lordships. Learned Judicial Commissioners reported back that the decree was passed with consent of the parties. The appeal was then dismissed by their Lordships AIR 1932 P C 251. In the next case it was held that where the dispute is over the nature of a compromise, the appellant has right in appeal to show that the compromise was. In the last case it was held that the Court bad inherent power to set aside the settlement obtained under intimidation by the Court. It will be shown that the rule of estoppe cannot be invoked against the appellants unless there had been an enquiry into the allegations made by them. Under subsection (3) of section 15 of the Ordinance, learned appellate authority has the powers to make further enquiry personally or through the Controller for disposal of the appeal. The appeals could not, therefore, be thrown out off hand unless it was found through enquiry that the allegations which the appellants had made to avoid consent order of ejectment against them were groundless or were not established properly.
4. In the result, the appeals are allowed and the order of learned District Judge rejecting the appeals summarily is set aside. Costs of these appeals to abide the event.
' The appeals are sent down to learned District Judge for enquiry into the allegations made by the appellants. Preferably, the enquiry should be held by learned District Judge himself. Parties to appear before him on 25th instant for fixation of date for enquiry which shall not exceed one week.
Further proceedings shall continue day to day. I should hope earnestly that it would not be much inconvenient for learned District Judge to announce final judgment by or on 15th April 1979.