MUHAMMAD JEHANGIR ARSHAD, J.-----Muhammad Aslam and others appellants who were defendants before the learned trial Court/Civil Judge 1st Class, Mailsi and appellants before the learned Additional District Judge, Mailsi, are aggrieved of the order, dated 3-3-2006 whereby the said learned Additional District Judge while accepting the application of Saleem-ud-Din respondent allowed him to withdraw from the compromise statement got recorded by him through his special attorney Ghulam Farid on 26-6-2004 and directed the decisin of the appeal titled "Muhammad Aslam and others v. Saleem-ud-Din and others" on merits.
2. The facts in brief are that Saleem-ud-Din respondent No.1 filed a suit for declaration, permanent injunction and possession against the appellants as well as Mst. Anwari Begum, predecessor-in- interest of respondents Nos.2 to 10 and one Muhammad Sharif predecessor-in --interest of respondents Nos.11 to 18. The said suit after contest was decreed by the learned Civil Judge 1st Class, Mailsi on 12-12-2001 in favour of Saleem-ud-Din and his sister Mst. Anwari Begum, predecessor-in-interest of respondents Nos.2 to 10. Against the said judgment and decree an appeal was filed by the present appellants on 19-1-2002 and in the said appeal the respondents Nos.1 to 10 appointed Mian Ahmad Hassan, Advocate as their counsel. On 26-4-2004 an application was moved on behalf of appellants and respondents Nos.1 to 10 stating therein that as the matter had been compromised whereby the grievance of the respondents Nos.1 to 10 had been redressed, hence respondents Nos.1 to 10 had no objection if the appeal was disposed of and accepted. The learned Additional District Judge requisitioned the file on the same date i.e. 26-6-2004 (as the actual date fixed in the appeal was 16-7-2004) and recorded statement of Ghulam Farid the alleged special attorney of respondents Nos.1 to 10 and in his statement Ghulam Farid stated on behalf of respondents Nos. 1 to 10 that he had compromised with the appellants and as their grievance stood redressed therefore, they had no objection to the acceptance of the appeal. The said statement was thumb-marked as well as signed by Ghulam Farid and his counsel namely Mr. Riasat Ali, Advocate. The said statement of Ghulam Farid was followed by the statement of Mian Muhammad Afzal, Advocate counsel for the present appellants, who also admitted the statement of Ghulam Farid as correct and the learned Additional District Judge after recording the above mentioned statement directed that petition be put up along with main appeal on the date already fixed i.e. 16-7-2004. However, on 10-7-2004 an application was moved by Saleem-ud-Din respondent No.1 praying for withdrawal of alleged compromise having been got recorded on his behalf and prayed for decision of the said appeal on merits. The reason for retracting from the said statement was that Ghulam Farid had no authority to make such statement, all the proceedings on 26-6-2004 were the product of fraud, mala fide, misrepresentation, collusion and cheating, inasmuch as Riasat Ali, Advocate was never given any power of attorney by respondents Nos.1 to 10 for making such statement conceding the claim of the appellants and that without determination of power of attorney of the original counsel Mian Ahmad Hassan, Advocate, Mr. Riasat Ali, Advocate had no authority to appear and conduct proceedings on the said date. The present appellants filed reply to the said application and the learned Additional District Judge after hearing arguments of both the parties decided said application on 3-3-2006 with the following observations:--- "I accept this application and I allow the petitioners Salim-ud-Din and others and legal heirs to withdraw from the said statement and also order that the said statement be not acted upon in future unless it was subsequently ratified by all the respondents through separate application in this regard."
3. At the very outset Syed Muhammad Ali Gillani, Advocate, learned counsel for the appellants has frankly conceded that. As admittedly Ghulam Fareed was neither the attorney of respondents Nos.2 to 10 nor he was holding any power of attorney on their behalf hence the statement/compromise made/entered into by him on behalf of respondent Nos.2 to 10 was neither a lawful statement or compromise nor could be enforced against them, hence according to the learned counsel for the appellants the appellants had no objection if the compromise entered into by Ghulam Fareed on their behalf and was not binding on respondents Nos.2 to 10 and to their extent appellants did not press their appeal and pressed their claim to the extent of Saleem-ud- Din respondent No.1 only who had admittedly appointed Ghulam Fareed as his attorney and Ghulam Fareed was competent to enter into compromise on behalf of respondent No.1 Saleem- ud-Din, therefore, their appeal may be considered to the extent of Saleem-ud-Din respondent only.
4. It has been argued by Syed Muhammad Ali Gillani, Advocate learned counsel for the appellants that as admittedly Ghulam Fareed was the attorney of Salim-ud-Din, respondent No.1 on the date i.e. 26-4-2004 when statement conceding the case of the appellants and requesting for acceptance of their appeal and setting aside of the decree of the learned trial Court by said Ghulam Fareed and his counsel was made, hence there was no justification and jurisdiction left with the learned trial Court to have refused to decide the appeal on the basis of the statement of Ghulam Fareed as the same was lawful compromise within the meaning of Order XXIII, rule 3, C.P.C.
Which ordained:-- "Compromise of suit.--- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to suit."
Further that the mere fact that on 26-6-2004 instead of original counsel a new counsel appeared on behalf of respondent was no ground for refusing to accept the compromise as the attorney was not only competent to engage new counsel and the new counsel so engaged was equally competent to enter into compromise on behalf of the respondent. Further contention of the learned counsel for the appellant is that lawfully entered compromise by a counsel on behalf of his client could not be retracted except on ground of which must be established in clear terms after recording strong and independent evidence on the particular of fraud. It has lastly been argued that once it was found to the satisfaction of the Court that matter had been adjusted through a legal compromise, the Court was bound to record the same and to pass a decree on its basis and it was not open to the Court to refuse or pass a decree according to compromise merely because a party had resiled from the agreement for one reason or the other. In support of his above contention learned counsel for the appellants has placed reliance on the following authorities:--
(1) PLD 1996 SC 213; (2) 1982 SCMR 539; (3) 1997 MLD 1953; (4) 1995 MLD 1866 (Lahore D.B.); (5) 1991 MLD 889; (6) 1992 MLD 631 and (7) 2004 YLR 1775.
3. On the other hand, learned counsel for respondents Nos.1 to 10 namely Ahmad Hassan, Advocate has strongly contested this appeal by arguing that since Ghulam Fareed did not hold any power of attorney to make any conceding statement on behalf of respondents Nos.2 to 10 or to appoint any new counsel on their behalf, therefore, the statement made by Ghulam Fareed as well as the counsel appointed by him on 26-6-2004 on behalf of respondents Nos.2 to 10 was neither a lawful statement of compromised or any decree could be passed against them or the decree of the learned trial Court to their extent could be set aside as a result of the compromise allegedly entered into by Ghulam Fareed and since the decree passed by the learned trial Court in favour of Saleem-ud-Din and Mst. Anwari Begum, the predecessor-in-interest of respondents Nos.2 to 10 was a joint and indivisible decree, therefore, could not be set aside partly and after the admission by the appellants about the want of authority on the part of Ghulam Fareed to the extent of respondent No.1 and not pressing their appeal to their extent would have no binding effect as a whole, therefore, according to the learned counsel for the contesting respondents that either the decree of the learned trial Court would stand or would be set aside as a whole and not to the extent of respondent No.1 Saleem-ud-Din only. The learned counsel for respondents Nos.1 to 10 has further argued that for bringing the impugned compromise within the parameters of Order XXIII, rule 3, C.P.C. The appellants have to prove that the said compromise was an adjustment of suit by a lawful agreement/compromise or the same was based on the satisfaction of the claim of the respondents but the impugned agreement/compromise does, not fulfil any of the above two conditions. To substantiate his arguments learned counsel for the contesting respondents has argued that since it has been admitted by the learned counsel for the appellants that Ghulam Fareed was not holding any power of attorney on behalf of respondents Nos.2 to 10 on 26-4-2006, hence any statement conceding the claim of the appellants was not binding on respondents Nos.2 to 10 and as it was a joint and indivisible decree, therefore, the statement made by Ghulam Fareed on behalf of respondents Nos.2 to I0 was not only without lawful authority but also there was no lawful agreement or compromise by Ghulam Fareed and further that the alleged statement of Ghulam Fareed conceding the claim of the appellants did not disclose that as a result of the same the claim of the contesting respondents was being satisfied in lieu of the same. It has also been argued by the learned counsel for the contesting respondent that in fact a fraudulent device was adopted by the appellants by moving the learned appellate Court for recording the alleged compromise before the date already fixed by appointing a new counsel and as the learned Appellate Court was not satisfied with the conduct of the appellants as well as Ghulam Fareed on 26-4-2006, therefore, the learned Additional District Judge in order to satisfy his conscious rightly passed no final order on 26-6-2004 and adjourned the matter to the date already fixed by the Court on 16-7-2004 and as the contesting respondents in the meanwhile got the knowledge of the alleged fraudulent act of the appellants they, therefore, rightly moved application on 10-7-2004 requesting for the withdrawal of the alleged compromise made by Ghulam Fareed attorney of respondent No.1 only and the learned Additional District Judge after considering all the pros and cons of the matter and the legal aspect of the case rightly refused to accept the compromise through the impugned order which is not only lawful but also in accordance with the principle of safe administration of justice. The learned counsel for the respondent in support of his contention has relied upon the following judgments of the superior Courts:--
(1) 1992 SCMR 1109; (2) 1997 MLD 2996; (3) 1993 SCMR 374; (4) AIR 1954 Born. 28; (5) 1982 CLC 547;
(6) 1994 MLD 2074 and (7) PLD 1995 Pesh. 18.
4. I have given my anxious consideration .To the above stated arguments or the learned counsel for the parties and have also gone through the material available on the file with their assistance and also gone through the above mentioned judgments cited by both the learned counsel for the parties in the light of law contained in Order XXIII, rule 3, C.P.C.
5. The decision of this F.A.O. Rests upon the determination of the following points:--
(i) Whether the decree of the learned trial Court and impugned before the learned Appellate Court is a joint and indivisible decree and what is the effect of withdrawal/non-pressingt of this appeal by the appellants to the extent of respondents Nos.2 to 10;
(ii) Whether the compromise/statement got recorded by Ghulam Fareed on 26-6-2004 was a lawful agreement or compromise; (i.e) Whether the said compromise was a lawful satisfaction of the claim of contesting respondents in respect of the subject-matter of the suit; and
(iv) Whether respondent No.1 could validly withdraw the alleged compromise before it is finally accepted by the learned Additional District Judge.
6. The decree passed by the learned trial Court leaves no doubt that it was a decree for a joint possession of the property in dispute in favour of Saleem-ud-Din, respondent No. 1 and his sister Mst. Anwari Begum A and was thus an indivisible decree, therefore, it could either be set aside as a whole or maintained as a whole so for as the same related to the rights of respondents Nos.1 to 10.
Therefore, to say as argued by the learned counsel for the appellants that although the compromise got recorded by Ghulam Fareed was not binding on respondents Nos.2 to 10 yet it was binding on Saleem-ud-Din to the extent of his share is not a correct proposition of law as in that case the decree in part to the extent of Saleem-ud-Din respondent No.1 could not be set aside only, hence, the compromise/statement got recorded by Ghulam Fareed attorney of respondent No.1 only and not of respondents Nos.2 to 10 was not a lawful compromise/agreement within the meaning of Order XXIII, rule 3, C.P.C. And the same was rightly ordered to be ignored by the learned Additional District Judge through the impugned order. Even otherwise in terms of second part of Order XXIII, rule 3, C.P.C. There is no material available on the record to hold that the said compromise/ agreement was in part or whole satisfaction of the claim of the respondents 1 to 10 of the subject-matter of the suit and no person of ordinary prudence would allow such type of compromise to stand whereby a decree obtained by the respondents after a litigation of more than 12 year would be allowed to be set aside merely without any reason, consideration or terms reduced into writing but just at the whim of a person who was acting as an attorney of one of the affected parties only. Therefore, I am satisfied that the alleged compromise or statement got recorded by Ghulam Fareed on 26-6-2004 as an attorney of Saleem-ud-Din, respondent No. 1 not only was not a lawful compromise/agreement of the adjustment of the matter or was in satisfaction of the claim of the contesting respondents of the subject-matter in dispute, therefore, the learned Additional District Judge rightly brushed aside the same through the impugned order.
Although as canvassed by the learned counsel for the parties and held in 1995 MLD 1889, PLD 1996 SC 213 and 1982 SCMR 539 change of counsel to enter into compromise was no ground for the recording of compromise yet the fact remains that before recording the compromise the conscious of the Court must be satisfied that the said compromise was either a lawful compromise amounting to B adjustment of the suit wholly or partly or the same was in satisfaction of the claim of the affected party in respect of the subject-matter of the suit 1993 SCMR 374 is an authority to this effect.
7. As held in the above paragraph the disputed compromise did not stand the test of any of the above consideration, therefore, in the present case change of a counsel, definitely be taken into consideration so as to arrive at a conclusion with regard to adjudging the legality of the same in the light of the provisions contained in Order XXIII, rule 3, C.P.C. The judgments cited above on behalf of the learned counsel for the appellants relate to the matter whether the compromise' was in fact allowed by the Court and the decree was ultimately passed and thereafter the compromise was challenged but in the instant case the matter never reached at such stage and the compromise was disallowed by the learned Court and the same could validly be done by learned Additional District Judge in view of the law laid down in AIR 1958 Born. 28 ad also in 1993 SCMR 374.
8. So for as the question whether the respondents could validly withdraw the compromise got entered into by Ghulam Fareed as attorney of respondent No.1 only on 26-6-2004 the answer is very simple and requires no deliberation. As the compromise/statement got recorded by Ghulam Farecd attorney of respondent No. 1 only on 26-6-2004 had no binding effect on respondents Nos.2 to 10 being not their attorney and the decree impugned in the appeal was a joint and indivisible decree which could either be set aside as a whole and not in part and that since there is no material available on the record to hold that the alleged compromise recorded on 26-6-2004 was in satisfaction of the claim of c the contesting respondents in whole or part, therefore, no legal effect could be given to such compromise and the respondents were very well in their right to withdraw the same before the same was acted upon or accepted by the learned Additional District Judge.
9. The upshot of the above discussion is that this, appeal has no force and the same is dismissed.