' The facts forming background of present application are that Mst. Gulshan Afroz and her husband Muhammad Yousuf owned 50% share each in Plot No.15-A Block No.6, P.E.C.H.S., Shahrah-e-Faisal, Karachi with three storeyed building upon it. The construction includes 15 shops, bank etc.
2. On 7-4-1992 Muhammad Yousuf expired and his share in the above property devolved upon his legal heirs including widow Gulshan Afroz. In the result of some family settlement all other legal heirs of Muhammad Yousuf executed a relinquishment deed in favour of one namely: Muhammad Jamal, the applicant/ defendant No.1 on 4-4-1993.
3. After that on 25-2-1993 plaintiff/ respondent executed a gift-deed in favour of her same son Muhammad Jamal in respect of her 50% share in the property.
4. Later on all the other legal heirs of Muhammad Yousuf filed Civil Suit No.1488 of 2002 in the Court of V-Senior Civil Judge, Karachi-East for cancellation of the relinquishment deed pleading therein substantially that it had been executed withdut any consideration and on the understanding and assurances that it shall not entitle Muhammad Jamal to become owner of the property and further he shall share the income from the property with all other legal heirs of Muhammad Yousuf according to their respective shares. The plaint of the suit was rejected under Order VII, rule 11, C.P.C.
Vide order, dated 21-12-2002 and the appeal against it is pending adjudication.
5. During proceedings of the suit Muhammad Jamal filed affidavit-inrejoinder on 18-12-2002 annexing with it the mutation letter, dated 3-5-1995 showing the 50% share of his mother Gulshan Afroz also to have been mutated in his favour on the basis of gift-deed, dated 25-2-1993.
6. On 15-3-2003 Mst. Gulshan Afroz filed a Suit bearing No.280 of 2003 for declaration that gift- deed, dated 25-2-1993 did not confer any right and title in favour of her son Muhammad Jamal as neither she meant to divest herself of the ownership of the property nor she had handed over possession thereof to the donee. She further prayed that the same deed be cancelled issuing permanent injunction restraining Muhammad Jamal claiming to be owner of the property and from selling; transferring or encumbering it.
7. The defendant Muhammad Jamal filed written statement claiming himself to be the legal owner of .50% of the property on the basis of gift-deed, dated 25-2-1993.
8. During pendency of the suit, Mr. Salim Thapdawala, the learned Advocate representing Muhammad Jamal stated before the. Court on 29-1-2004 that his client had offered some terms therefore he shall produce him on the following day before the Court so that such terms be recorded' The matter was fixed on the following day i.e. 30-1-2004 at 11-00 a.m. On that .Day Mr. Salim Thapdawala was present with Muhammad Jamal. Following consent order was passed on that date:- "Mr. M. Salim Thapdawala says his client is agreeable to compromise the matter with the plaintiff on the basis the suit property should be evaluated on the current market rate whereafter the expenditure which had been incurred by defendant No.1 in the development of the suit property should be subtracted from the total market value and the balance would then be given to the plaintiff. He submits that an exercise should also be conducted regarding profit made by defendant No.1 from the suit property, which may also be taken into consideration while offering the final amount.
' In the circumstances by consent the learned Official Assignee is appointed to carry out the aforementioned exercise whereafter he shall submit his report within a period of two months from today. Order accordingly. The matter be put up thereafter."
9. Muhammad Jamal then challenged that consent order through High Court Appeal No.41 of 2004 which was dismissed on 4-5-2004 as misconceived holding that the order can be challenged under section 12(2), C.P.C.
10. After that he filed present Judicial Miscellaneous Application No.19 of 2004 for setting aside the consent order, dated 30-1-2004 alleging the same to have been obtained by his mother Gulshan Afroz through fraud, misrepresentation, forgery, manipulation and in active collusion with his counsel Mr. Salim Thapdawala.
11. On 10-3-2005 this Court passed order for recording the statement of Muhammad Jamal.
Thereafter his statement was recorded on 17-3-2005. On 29-3-2005 when Mr. Salim Thapdawala was present the learned Advocate Mr. Abdul Qadir Khan, representing the applicant and respondents counsel Mr. Abdul .Ghafoor Qureshi and Mr. Abbas Ali, A.A.-G. Stated that no further statements including that of Mr. Salim Thapdawala need to be recorded as the application can be decided on the basis of arguments relating to the legality of the impugned order.
12. Arguments were then heard partly. Further arguments were heard on 26-4-2005 when Mr. Habib-ur-Rahman and Mr. Abdul Qadir Khan, Advocates representing the applicant once again stated that they want to argue only on legal points and do not want to accuse Mr. Salim Thapdawala of any misconduct or malpractice.
13. After making the above statement Mr. Habibur Rahman attacked the order on the following grounds:--
14. That the impugned order has been passed without jurisdiction as the applicant's application C .
M . A . No. 2511 of 2003 under Order VII, rule 11, C.P.C. Was pending, therefore, it was the legal requirement to decide it first before proceedings with the main application. He further contended that the Court had also passed order, dated 27-10-2003 that first of all the said application is to be decided. In support of this contention he referred to the case Pak Carpet Industries Limited v.
Government of Sindh and 2 others (1993 CLC 334).
15. According to him the impugned order is without jurisdiction also for the reason that the suit filed by Gulshan Afroz the mother of the applicant was barred by limitation and the Court had no jurisdiction to decide any question other than that of limitation. It was further contended that the cause of action to file the suit in respect of gift-deed had occurred to Gulshan Afroz at the time when the cause of action accrued to her for filing Suit No.1488 of 2002 in respect of relinquishment deed, therefore, her Suit No.280 of 2003 filed on 15-3-2003 was barred by limitation and consequently the Court had no jurisdiction to proceed with . It and pass any other order. He referred to the case Dil Mir v. Ghulam Muhammad and 2 others (PLD 2002 SC 403). The next contention of the learned Advocate was that Gulshan Afroz had filed earlier Suit No.1488 of 2002 against the applicant in respect of the relinquishment deed omitting the relief in respect of the gift- deed, therefore, her suit in respect of that prayer was barred under Order II, rule 2, C.P.C.
16. It was further argued by Mr. Habibur Rahman that Vakalatnama of Mr. Tapedawala was not in accordance with rule 49 of Sindh Chief Court Rules, therefore, it could not be accepted as Vakalatnama nor any statement made by Mr. Tapedawala could be treated as an authorized act or statement.
17. Mr. Habibur Rahman, Advocate lastly contended that any order on the basis of compromise can only be passed when all the parties to the suit are present but the impugned order was passed at the back of defendants Nos. 2 and.3.
18. Mr. Abdul Ghafoor Qureshi, learned Advocate representing Gulshan Afroz defended the order claiming it to be perfectly legal and proper. He argued that after withdrawal of the allegation of collusion and mal-practice by the applicant's Advocate present application falls to the ground.
None of the ground taken by Mr. Habibur Rhaman, Advocate after withdrawing the allegations against the learned Advocate was taken in this Judicial Miscellaneous. They are all after thought.
According to him even otherwise the grounds taken by Mr. Habibur Rahman do not justify the recalling of the compromise order. He contended that rule 49 Sindh Chief Court Rules relates to the withdrawal of the Vakalatnama and the pendency of application under Order VII, rule 11, C.P.C.
Cannot stand in the way of the compromise in the suit. He further contended that question of limitation, and applicability of Order II, rule 2, C.P.C: have been loose value in view of the assertions in the plaint of the suit filed by Gulshan Afroz. They expressly speak that Muhammad Jamal the son of Gulshan Afroz had acted in clear breach of trust and the understanding between the parties and mutation in his favour on the basis of gift-deed had first time came to the knowledge of Gulshan Afroz when he (Muhammad Jamal) filed his counter-affidavit on 18-12-2002 annexing with it the mutation letter, dated 3-5-1995 showing the property to have been mutated in his name on the basis of gift-deed, therefore, neither the suit is time-barred nor it is hit by Order II, rule 2, C.P.C.
18-A. Under section 12(2), C.P.C. The validity of orders can only be challenged on the plea of fraud, misrepresentation or want of jurisdiction. Although in the application fraud and misrepresentation was alleged saying that the order was obtained by the respondent Gulshan Afroz in collusion with the applicant's Advocate but that ground has not been pressed.
19. For proper understanding of the relevant provisions of section 12(2) and appreciation of the contention of Mr. Habib-ur-Rahman, Advocate on the question of jurisdiction I reproduce subsection 2 of section 12 hereinunder.-- "(12). Bar to further suit.--(1)...............
(2) Where a person challenges the validity of judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
20. The words of the provisions are "want of jurisdiction", which mean inherent lack of jurisdiction. As mentioned above, in present case even the applicant does not plead the absolute or inherent want of jurisdiction.
21. The pendency of an application under Order VII, rule 11, C.P.C. And the order of the Court to decide it first by themselves did not take away the jurisdiction of the Court which it possessed over the suit. Proprieties cannot affect the jurisdiction. It is not the scheme of the law that even the permission to compromise be withheld till decision on such an application. Acceptance of compromise during pendency of an application under Order VII, rule 11, C.P.C. Was, therefore, not without jurisdiction.
22. So far the question of limitation is concerned decision on it can only be recorded after recording the evidence during trial. The evidence on which the findings about the limitation had to be recorded was to cover other factual aspects of the controversy also therefore, the question of limitation was linked with other controversies. For instance Gulshan Afroz the respondent/plaintiff had pleaded that there was understanding that the gift-deed shall not make the applicant (Muhammad Jamal) entitled to take over the property. She also pleaded that the gift was incomplete for want of possession. She further pleaded that she had been kept in dark and prevented from filing the suit as she learnt about the use of gift-deed for mutation in favour of Muhammad Jamal after he produced copy of mutation letter along with his counter-affidavit in the earlier suit on 18-12-2002. Thus the question of limitation is linked with the merits of the case also. Thus, the Court had jurisdiction over the matter and the order was not passed without jurisdiction.
23. Objection about Vakalatnama filed by Mr. Thapdawala is purely technically one. Admittedly the said learned Advocate had been representing the applicant in the suit. Vakalatnama singed by the application in favour of Mr. Thapdawala does fulfil the requirement and cannot be treated invalid. It does contain the authority in favour of Mr. Thapdawala to compromise on behalf of his client.
Moreover the record confirms that Mr. Thapdawala conducted himself as a responsible Advocate.
Order, dated 29-1-2004 speaks that Mr. Salim Thapdawala informed the Court that his client had offered some terms therefore he shall produce him on the following day. After that on 30-1-2004 he made offer for compromise when his client was present with him.
24. The contention about omission of prayer relating to the gift-deed in the earlier suit is also devoid of force, for the reasons given while dealing with the question of limitation.
25. Also the reason of absence of other party is equally immaterial. Firstly none of them has objected to the passing of impugned order claiming it to have affected him or them; secondly it relates to the applicant Muhammad Jamal and his mother only.
26. The impugned order cannot be held illegal for want of written compromise application. Under the law even oral compromise can be accepted validly on the basis of terms thereof expressed and agreed by the parties before the Court orally.
27. In view of the above neither the contentions of Mr. Habib-ur-Rahman, advocate have force in them nor the case-law referred to come to his help.
' Consequently the application fails and is dismissed.