' HAMID ALI MIRZA, J.--- These two civil petitions for leave to appeal are directed against judgment dated 27-11-2002 in Civil Revision Applications Nos.66 and 67 of 1995 passed by learned Single Judge of the High Court of Sindh, Karachi, whereby both civil revisions were allowed thereby common order, dated 12-5-1993 in Civil Suits Nos.1091 and 1275 of 1990 passed by Vth Senior Civil Judge, Karachi South decreeing the suits of petitioner Abdul Ghani against respondents Mst.
Shaheen and other respondents in terms of compromise allegedly signed by the parties out of the Cot!Rt was set aside consequently both suits were remanded to the trial Court for disposal according to law.
2. Brief facts of the case are that petitioner/plaintiff Abdul Ghani filed Suit No,1091 of 1990 against Ghulam Muhammad and two others for declaration and injunction while Suit No,1275 of 1990 was filed by Abdul Ghani for mandatory and prohibitory injunction against respondent Ghulam Muhammad and 15 others when both suits were in respect of premises No,G-1, Plot No,MIR-1/92, Katchi Gali No,3 Jodia Bazar, Karachi in Suit No,1091/90 all three respondents/defendants gave statements before the Court that they were having no concern with the suit property while Suit No,1275/90 was contested by the parties. On 12-5-1993 applications under section 151, C.P.C. Were moved in both the suits which were signed by learned counsel for respondent No,1 and learned counsel for respondent Abdul Rashid and Mst. Haleema. In the said application it was prayed that the suits be disposed of as the parties have patched up out of the Court and have signed such agreement. Photocopy of the same was annexed with the application. Trial Court in view of said application decreed both the suits in terms of compromise. The respondent Mst. Shaheen preferred Civil Revision No,66 of 1995 against Abdul Ghani and fifteen others and also filed Civil Revision No,67 of 1995 against Abdul Ghani and three others in the High Court of Sindh at Karachi which revisions were heard by learned Single Judge and were allowed vide impugned judgment, hence these petitions.
3. We have heard learned counsel for the parties and perused the record.
4. Learned counsel for the petitioners submitted that revision applications under section 115, C.P.C.
Were incompetent and not maintainable as appeal against the order, dated 12-5-1993 decreeing the suit in terms of alleged compromise, could have been filed. He has placed reliance upon Municipal Committee, Bahawalpur v. Sh. Aziz Elahi PLD 1970 SC 506. He also submitted that the compromise was entered into between the parties on the basis of which order, dated 12-5-1993 was passed by learned Single Civil Judge decreeing the suit of the petitioner/plaintiff. He also submitted that the respondent Mst. Shaheen could have filed an application under section 12(2), C.P.C. For setting aside the decree in case fraud was practised upon the Courts.
5. Learned counsel for the respondents submitted that suit was decreed by the Senior Civil Judge on an application under section 151, C.P.C., therefore, appeal was not competent. He also submitted that the said revision applications could be treated as applications under section 12(2), C.P.C. He also submitted that impugned order passed by learned Single Judge of the High Court is legal and proper as no agreement for the purpose of compromise was entered into between the parties and the agreement so filed was substituted in place of an agreement which was actually entered into by the parties. He further submitted that learned Single Judge of the High Court has attended to all submissions of the learned counsel for the petitioner and there being no substantial question of law of public importance involved in these petitions for grant of leave, hence no interference is called for by this Court.
6. We do not find merit and substance in the submissions of the learned counsel for the petitioners.
7. There is no cavil with the proposition that when an appeal lies revision would not lie. However, the facts of the instant case are quite' different and distinguishable to the case cited by learned counsel for the petitioner, therefore, same would not be of any assistance to the petitioner's case.
In fact learned Single Judge has carefully considered the record of the case minutely and has arrived at correct decision with the following observations:- "The perusal of record shows that the document annexed with both applications was allegedly signed by applicant and respondent No,1. Applicant is not party to Suit No,1091 of 1990. Mr. Abdul Sattar Khatri was engaged as counsel for respondent Abdul Rashid and Mst. Haleema in Suit No,1275 of 1990 and he was not engaged as counsel for applicant. The applicant was not present before the trial Court on 12-5-1993 as is evident from the record and impugned orders. Admittedly no notice was issued by the trial Court to applicant in respect of applications under section 151, C.P.C. Dated 12-5-1993, thus it is crystal clear that orders were passed without notice to applicant at her back and without her consent regarding acceptance of compromise outside the Court, hence the impugned order against applicant were passed in contravention of mandatory provisions of law, therefore, the same are nullity in the eye of law and not binding upon the appellant. In the case of Miss Reeta (ibid) it is held by a D.B. Of this Court that no period of limitation will run for challenging the orders which have been passed in violation of mandatory provisions of law.
' The further perusal of both the applications under section 151, C.P.C. Moved before the trial Court shows that word "agreement" is written in both the applications, whereas the document presently annexed with the applications under section 151, C.P.C. Is titled as "settlement/undertaking/ agreement". The certified true copy of original agreement between the parties obtained by applicant from other Courts in other matters has been produced, which shows that the document actually bear the title "agreement". Thus, the contention of learned counsel that the document annexed with applications under section 151, C.P.C. Has been, substituted has some force. On the original order passed in Suit No,1275 of 1990 there is cutting in the date of order and under the signature of the Presiding Officer year is mentioned as 1994.
' The respondent No,1 has filed Suit No,684 of 1993 on 30-10-1993 before this Court for specific performance of the very document which has been challenged by the applicant to be forged one.
If this very document had been made rule of Court in suits bearing Nos.1091 and 1275 of 1990, the respondent No,1 would not have filed Suit No,684 of 1993 on 30-10-1993 for specific performance of the document in written statement filed by applicant on 13-1-1994 in Suit No,684 of 1993 the applicant was specifically mentioned that Suits Nos.1091 and 1275 of 1990 are pending. If Suits Nos.1091 and 1275 of 1990 had been decided on 12-5-1993, the applicant would have not mentioned about the pendency of suits in the written statement of Suit No,684 of 1993 that these suits are pending. Had the plea of applicant in written statement of Suit No,684 of 1993 regarding pendency of Suits Nos.1091 and 1275 of 1990 been incorrect the respondent No,1 or any other person appearing on behalf of him would have immediately raised objection and he would have produced certified copies of order in both suits before this Court. No application under Order XXIII, rule 3, C.P.C. Was moved before the trial Court for decreeing the suit in terms of compromise; hence contention of learned counsel for applicant that parties did not desire to make the compromise made by them outside the Court as rule of the Court appears to be plausible. Apparently both the properties i,e, G- II and G-III in respect of which the impugned orders have been passed belong to applicant she was not party to Suit No,1091 of 1990 and she had not engaged Mr. Abdul Sattar Khatri as counsel in Suit No,1275 of 1990 who submitted compromise application. The applicant was not present before the Court on 12-5-1993 and impugned orders were passed in her absence, hence they are nullity in the eye of law and appear to have been passed in back date. Thus, no period of limitation would run for challenging the said order."
' The above observations and finding would indicate that the respondent was not party to the Suit No,1091 of 1990 and she had no knowledge and was not present before the Court on 12-5-1993 and no notice of application under section 151, C.P.C. Was given to her and order, dated 12-5-1993 was passed behind her back and without consent in respect of the alleged compromise out of the Court and the said agreement, if made and on the basis of which if case stood disposed of in favor of said plaintiff Abdul Ghani on 12-5-1993 he would not have filed Suit No,684 of 1993 on 30-10-1993 and would have not stated in the written statement filed on 13-11-1994 in suit No,684 of 1993 stating therein that suits Nos.1091 and 1275 of 1990 were pending. On perusal of evidence record would show that fraud and misrepresentation having been practised upon the Court in obtaining order dated 12-5-1993 decreed the suit of the respondent which was passed on an application under section 151, C.P.C. Hence the said order was not appealable, hence revisions were competent.
8. In view of above reasoning we are of the opinion that the impugned order does not suffer from any legal or factual infirmity considering also that no substantial question of law of public importance is involved, consequently these petitions have no merit, hence leave to appeal is declined and the petitions are dismissed.