1. This application under Section 151, C.P.C. has been filed by the Defendant No. 1 in which she has prayed to amend the decree passed by consent of the parties to the extent that the Defendant No. 1 be allowed to sell the suit property for the betterment of children and that the plaintiff who is the husband of the Defendant No. 1 has no objection to the grant of this application. The plaintiff has appended his no objection to the grant of this application as prayed. The consent decree in this case was passed on 2510-1999. The Counsel for the Defendant No. 1 was asked to support the application with necessary case law. Some have been cited by him.
2. The suit was filed by plaintiff Muhammad Saleem for declaration, permanent injunction and cancellation of documents in which he has alleged that Plot Bearing No. D-2. Blocks 5, Park Lane, Clifton KDA Scheme No. 5. Karachi was purchased by him benami in the name of Defendant No. 2 his father-in-law and the father of the Defendant No. 1 his wife. He has further alleged that from his own fund he has constructed a bungalow on the said plot and that he and his family were residing in it. The plaintiff came to know that the Defendant No. 2 without his permission, secretly and with mala fide intention gifted the said bungalow to the Defendant No. 1 on which dispute arose between the plaintiff and the Defendant No. 1. The plaintiff also learnt that the Defendant No. 1 is selling the said bungalow for which a public notice has appeared in newspaper. The plaintiff has therefore, filed this suit to obtain declaration of his ownership in respect of the said bungalow and cancellation of gift made by the Defendant No. 2 in favour of the Defendant No. 1 and consequential injunction. The suit was resisted by the Defendant No. 1 who filed her written statement and denied the-claim made by the plaintiff. The issues were framed and thereafter the Commissioner was appointed to record evidence of the parties but it appears that no evidence was recorded and when on 25-10-1999 the matter came up in Court, the following order was. passed: "25-10-1999: Mr. Nizamuddin Memon alongwith the plaintiff Muhammad Saleem.
3. Mr. Muhammad Aqil for Defendants Nos. 1 and 2 alongwith Defendant No. 1. Mrs. Fareeda Saleem.
4. Mr. Abdul Ghafoor Qureshi Commissioner.
5. At the joint instance of the learned Counsel for the plaintiff and Defendants Nos. 1 and 2, the present suit is taken up, disposed of and decreed with consent of the plaintiff and Defendant No. 1. present in Court in the following terms--
(i) the subject property Bearing No. D-2 Block 5, Park Lane, KDA Scheme No. 5, Karachi, alongwith structure thereon is acknowledged as the sole and exclusive property of the Defendant No. 1;
(ii) the Defendant No. 1 shall not alienate, transfer and/or encumber the said property or create any charge thereon during her life time; (iii)the plaintiff may continue to occupy the ground floor portion and the Defendant No. 1 shall continue to use and occupy the first floor portion of the said property without any let or hindrance by the plaintiff; (iv)the plaintiff shall procure and obtain independent utility connections for use at the ground floor portion whereas the existing utility connections shall belong to the Defendant No. 1. However, the plaintiff may continue using the present utilities for- a period of three months or further period as may mutually be agreed in writing, until independent connections/services are obtained by him, for the period of three months, as above, the liability to pay for the utility bills shall be that of the plaintiff whereafter the two parties namely the plaintiff and Defendant No. 1 shall be liable for the utilities, respectively availed by them;
(v) liability to pay the property tax shall exclusively be that of the plaintiff;
(vi) parties shall bear their own cost.
6. Commissioner shall be paid a sum of Rs. 5,000 by the plaintiff for the work he has so far done towards recording evidence. The payment being made within 15 days.
7. As a result of disposal of the suit, as above, the two Misc. Applications and the Commissioner's report are disposed of.
8. (Sd.) JUDGE".
9. In terms of the above order the decree was drawn.
10. Mr. Abdul Hameed Iqbal, learned counsel has submitted that if the parties have obtained a consent decree on certain terms such terms are merely an agreement/contract between the parties and it can be varied at any time by consent of the parties and there is no impediment in accepting the same. In support of his submission, he has relied upon the cases of Yousaf Ismail Bhai Abdullahbai Lalji v. Abdullabhai Lalji and others AIR 1932 Born. 615; Alarakha Hassan and others v. Amir Hussain Aladmiya and others AIR 1968 Gujarat 265; Habib Mian and another v. Mukhtar Ahmad and another AIR 1969 Allahabad 296; Banka Behari Bhattancherjee v. United Bank of India Ltd. and others AIR 1957 Tripura 50; Bindeshwari Pd. Chaudhary v. Debendra Pd. Sindh and Others AIR 1958 Pat. 618; Sindh Road Transport Corporation v. Major (Rtd.) S. M. Ali Zaheer Khan 1991 SCMR 425; Mian Shamsul Haq and others v. Mian Hamid Haq and others 1997 SCMR 586; Bhima Rama Jadhav v. Abdul Rashid AIR 1961 Mysore 175; R. Subramanita lyer and others v. Thangammal AIR 1965 Madras 305; Ramjanam Tewary and another v. Bindeshwari. Bai AIR 1951 Pat. 299; Water and Power Development Authority v. Mian Abdul Rauf PLD 2002 Lah. 268; Ram Rakha Mal Bhandari v. Dina Nath Bhatia and others AIR 1941 Lahore 419; Muhammad Anwar Khan and 5 others v. Chaudhary Riaz Ahmad and 5 others PLD 2002 SC 491; Mst. Zakia Begum v. Niaz Ahmad 1999 MLD 3156; Sher Muhammad and others v. Khuda Bux and another PLD 1961 (W.P. Lahore) 579.
11. I have considered the submissions made by the learned counsel and have gone through the case- law on the subject and have also perused the record.
12. Apparently, the case is where the parties by consent have obtained decree from this Court on the terms stated therein and now through the present application the parties seek deletion of term (ii) of the said consent decree and has sought that Defendant No. 1 be allowed to sell the property in question. In the cited judgments which are mostly from the Indian jurisdiction, it has been observed that compromise is a creature of an agreement made between the parties and is subject to the incident of such agreement with an order of the Court added to it. The fundamental principle governing the construction of the contract will be applicable for the construction of the compromise between the parties. At the same time in the case of Banka Behari Bhattancheijee (supra) an observations is made that the consent decree cannot be altered by the Court without consent of all the parties concerned. In the case of Water and Power Development Authority (supra) the Hon'ble Judge of the Lahore High Court has observed that compromise decree only amounts to an agreement between the parties superimposed by seal of Court, but such superimposition of Court's seal would not make compromise decree untouchably sacred as parties still have option to amend terms thereof mutually. In the case of Riaz Hussain vs Mazaray Khan 1988 CLC 1129 Munir A. Shaikh J. (as his Lordship then was) at page 1132 has observed as follows: "I have considered the arguments. I have not been able to persuade myself to accept the same.
13. Decree Exh.P.6 which is the main stay of the case of the petitioner is merely a consent and a compromise decree and under the law it has no better legal status than agreement between the parties, but of course with authority of the Court superseded to it. Decree, dated 30-11-1965 passed in the suit of Mazaray Khan which he filed against the petitioner challenging mutation of gift in his favour having also been passed on the basis of compromise and agreement between the parties, therefore, similarly can safely be concluded to be an agreement. Decree, dated 30-111965, being an agreement later in time therefore, shall be deemed to be an agreement by which the parties intended to modify and supersedes the previous agreement embodies in Exh.P.6."
14. After examining the law as discussed above, it appears that it is a recognized principle of law that .where by agreement of the parties a compromise decree is passed by the Court, the parties are at liberty to have it amended or modified by their mutual consent. The question is that under which provision of law such amendment and modification in the compromise decree can be obtained by the parties with their mutual consent. Apparently there is no gain in saying that sanctity is attached to a decree passed by a Court and the provision of Civil Procedure Code provide for the instance where a decree may be sought to be amended or modified or even altogether set aside for example by review, revision, appeal an application under Section 12(2) or by application under Section 152. In all these provisions, grounds and reasons are provided on the basis of which the decree can be amended or modified or even set aside altogether. In the present case. the parties are not taking any ground or giving any reason for the amendment or modification of a decree as provided in the above mentioned provisions of the C.P.C. rather it is being sought to be amended or modified merely for convenience sake and to suit the interest of the parties. In my respectful view, in a situation like the present one where clause (i) of the consent decree provides an unambiguous acknowledgement that it is a sole and exclusive property of the Defendant No. 1 while clause (ii) provides that Defendant No. 1 shall not alienate, transfer, and/or encumber the said property or create any charge thereon during her life time, apparently are not consistent with each other: Rather the stipulation in clause (ii) is 'in contradiction of the stipulation in clause (i) for the mere reason that once the Defendant No. 1 is acknowledged to be the sole and exclusive owner of the property, bar contained in clause (ii r will seem to he either redundant or not in accordance with law. Once it is acknowledged that the Defendant No. 1 is a sole and exclusive owner of the property she in law has a right to deal with it in any manner she may consider appropriate. In doing so, she has right to alienate, transfer, encumber or create charge on the property and I may say, with all due respect, that a clog cannot justifiably be put on exercising such right by the Defendant No. 1. However, I do not wish to enter upon the debate as to whether the "clause (ii) of the compromise decree is redundant or is not in accordance with law and I will not record my finding on it as I am not called upon to do so.
15. The Defendant No. 1 has made an application under Section 151 C.P.C. and in my view, such provision attracts to the facts and circumstances of the present case where inherent power of the Court can justifiably be invoked to meet the ends of justice and to amend or modify the consent decree fey the mutual agreement of the parties. As regards the question of C limitation is concerned, as stated above, the compromise decree having been passed by agreement of the parties and so far the agreement remain in the field, the parties have option to amend or modify its term and no limitation in this respect will bar obtaining of such amendment or modification in the agreement.
16. The consent decree was passed on the agreement made between the plaintiff and the Defendants No. 1 while Defendants Nos. 2 and 3 was merely a pro forma party. Though notice of this application was given but I Defendants Nos. 2 and 3 have neither filed any objection nor they have chosen to make appearance in this case. The application is therefore, allowed as prayed.