' ARSAHD NOOR KHAN, J.--By this application under section 12(2), C.P.C. Read with section 151, C.P.C., applicant prays for setting aside of the consent decree dated 24-2-2004 passed in suit No,1241of 2003 Anwar Hussain v. Abdul Salam and others
2. The facts leading rise to the present application in brief are that the respondent No,1 filed suit for specific performance of contract, declaration, cancellation, injunction and damages against the applicant and remaining respondents stating therein that the present applicant entered into an agreement with him on 16-7-2003 for the sale of industrial land measuring two acres in Survey No,69, 3 acres in Survey No,70.2 acres in Survey No,71 and 3 acres in Survey No,72 total 10 acres from Naclass No,24 Deh Dih, Karachi East for a sale consideration of Rs,80,00,000 which was paid by him to the present applicant on the very same day of the execution of the sale agreement which was acknowledged by him. After execution of the sale agreement an irrevocable general power of attorney in respect of the aforesaid land was also executed by the present applicant in favour of the respondent No,
1. In pursuance of the said transaction, the possession of the land was handed over by the applicant to the respondent No,1 with all rights, titles and legal character occurring in the said land and the title documents of the land in question were also handed over by the applicant to the respondent No,2. The land was leased out by the respondent No,1 to the applicant by order dated 23-12-1991 which was initially for thirty years and subsequently enhanced to the period of 99 years. It is further asserted in the plaint that the applicant thereafter did not execute the sale deed, therefore, the respondent No,1 constrained to file the suit as stated above. The present applicant as well as the respondents were served with the notice of the suit. The notice was served. After service of notice the applicant and the respondent No,1 settled their dispute and thus filed application under Order XXIII, Rule 3, C.P.C. Vide C.M.A. No,96 of 2004 stating therein the terms and conditions on which they had settled their dispute. The notice of the application was served on Advocate General Sindh as well as on the remaining defendants also. The application was finally heard and accepted on 24-2-2004 and the suit was decreed in terms of compromise application and decree was then prepared on 10-3-2004.
3. The applicant has filed the present application on 17-10-2005 stating therein that the consent decree was obtained by misrepresentation and fraud by the respondent No,1 as the applicant was put under threats for obtaining his signature on the compromise application as such the consent of the applicant was not free and binding on him. It is further stated in the present application that Suit Nos.173/92, 193/92 and 218/92 were also pending adjudication in between the parties wherein on 2-3-1993 all the interlocutory applications were decided in suits No,193/92 and Suit No,218/92 and the said order passed on 2-5-1993 was challenged in H.C.A. No,99 of 1993 Jamiat-e-Punjabi Saudagrane Delhi Society v. Abdul Salaam and others which was disposed of on 14-2-2003 by the DB which was disposed of by consent order dated 14-2-2003 whereby all the parties were directed to maintain status quo till disposal of three suits pending before the learned Single Judge on the Original Side as such the consent decree would not have been passed in the present case if the said fact had to brought in the knowledge of. Court, which has, therefore, been obtained by the respondent No,1 by exercising fraud and misrepresentation before the Court.
4. The notice of the present application has been served on all the parties and the respondent No,1 has appeared and filed his objection to this application wherein he stated that the compromise was effected with free consent of both the parties and no fraud or misrepresentation was committed by him. All the allegations contained in the application by the applicant have been refuted by the respondent No,1 in his objection.
5. I have heard. Mr. Shahab Sarki, Advocate for the .Applicant and Mr. Abdul Wajid Wyne, Advocate for the respondent No, 1.
6. The learned counsel for the applicant vehemently contended that at the time of passing the consent decree, the status quo was operating in civil suit which was passed in H.C.A. No,99/93 as such the parties could not enter in the compromise in view of the prohibitory orders passed by the learned DB of this. Court which fact has been concealed by the respondent No,1 while obtaining consent decree which tantamounts to misrepresentation and fraud on his part. He further contended that the applicant was pressurized by the respondent No,1 for his signature on the compromise application and because of fear of the respondent No,1, applicant had signed the compromised application therefore, the applicant was not free to sign the compromise application. He further contended that the allegation of misrepresentation and fraud require recording of evidence as such after framing the issue on this point to arrive at substantial decision of the matter. In support of his contention he relied upon the case of Abdul Aziz Khan Niazi and others v. Mrs. Salama Rahman and another 1992 CLC 777, Muhammad Qasim v. Abdul Karim 1993 M LD 1617, Lal Din v. Muhammad Ibrahim 1993 SCM R 710, Muhammad Akram v. Dr. Ghulam Rabbani and others PLD 2006 SC 773 and Mobina Begum v. The Joint Secretary Ministry of Religious and Minority Affairs, Governrnent of Pakistan, Islamabad and 2 others (sic)
7. Mr. Abdul Wajid Wyne, Advocate for the respondent No,1 has vehemently refuted the contention advanced by the learned counsel for the applicant and has contended that the compromise in between the parties was arrived at freely and voluntarily and the applicant was not pressurized by the respondent No,1 any manner whatsoever to obtain the consent decree. He further contended that the respondent No,1 has not committed any act of misrepresentation or fraud in obtaining the consent decree as the parties had admitted it before the learned Single Judge at the time of acceptance of the said application and in case, if the applicant was under any threat or duress, it was very .Easy for him to refuse to accept the compromise application before the learned Judge prior to its acceptance. He further contended that the application does not bear any cogent or plausible reasons to interfere in the consent decree passed by this Court and the application has been filed malafidely for certain ulterior motives and that no issue is required to be framed not the evidence is required to be recorded. In support of his contention, he has relied upon the case of Mst. Nasira Khatoon and another v. Mst. Aisha Bai and 12 others 2003 SCM R 1050 Water and Power Development Authority through Chairman and 5 others v. Messrs Sea Gold Traders 2002 M LD 19 and the Commanding Officer, National Logistic Cell and another v. Raza Enterprises and others 2003 CLC 719.
8, I have considered the arguments advanced on behalf of the parties and have gone through the entire material available on record as well as the case law cited on the subject.
9. The admitted facts of the present application are that the respondent No,1 had filed a suit for specific performance of the contract, declaration, cancellation, injunction and damages with regard to the suit property. The present applicant was served with the notice of the suit, who appeared and engaged Mr. Mazhar Ali B. Chohan, Advocate to represent him and defend the suit who filed his vakalatnama on his behalf. Mr. Nooruddin Sarki, advocate and Company also filed vakalatnama on behalf of the present applicant in original suit on 15-10-2003 and Mr. Mazhar Ali B.
Chohan advocate filed his vakalatnama on his behalf on 31-1-2004. Record of the main suit also shows that the parties filed their application under Order XXIII, Rule 3, C.P.C. On 31-1-2004 duly signed by them as well as by their counsel. The said application was filed in Court on 13-2-2004 when notice to the A.G. And remaining defendant was ordered which was also served and thereafter the matter was fixed on 24-2-2004 in Court and on which date the parties, their counsel as well as A.G. Were present and A.G, pointed out to the Court that now suit property in question, has been resumed by the provincial government vide Order 2 of 2001(sic) and prayed that compromise be allowed only subject to final outcome of the enquiry carried out by the Government of Sindh. The compromise application was, therefore, accepted. The consent order shows that both the parties as well as their counsel were also present at the time of acceptance of the compromise application and the NIC of the parties were also perused by the learned Judge before accepting the said application and the application was conditionally accepted with the observation that in the circumstance the application is allowed and the suit is decreed in terms thereof subject to the condition that the rights and the obligations of the parties as per decree would be finally adjudicated by committee formed under the aforesaid Ordinance 2 of 2001(sic).
The suit against the respondent Nos.2 to 8 was dismissed as withdrawn. The said circumstances show that the compromise application was not allowed hurriedly on the day of its presentation but it took sufficient time from the date of its presentation and acceptance and, in case, if the applicant was forced, intimidated or coerced by the respondent No,1 to sign the said application so many opportunities were available to him to escape from the said compromise and finally on the day when he was present in Court before the learned Single Judge of this Court, in whose presence the applicant instead of disclosing any reservations and fear, states his no objection for acceptance of the said compromise application. It is, therefore, evident that at the time of acceptance of the compromise application and consent decree, the applicant, in any way was not under the affairs of influence, threat or coercion as such the plea of misrepresentation and fraud seems to be after thought to deprive of the respondent No,1 from the fruit of the decree.
10. In his application, nowhere the applicant stated about the particulars of misrepresentation or fraud allegedly practised by the respondent No,1 in obtaining consent decree. The applicant is under obligation to state the particulars of misrepresentation and fraud or even the nature of the influence basing on which he allegedly signed the compromise application. The present application is completely silent to show that what type of the influence had been practised by the respondent No,1 to compell him to sign the compromise application. For the purpose of consideration of the application under section 12(2), C.P.C., the applicant is required to set forth each and every detail of the allegation which according to him are necessary to establish the case of setting aside a consent decree but the application is completely silent on this aspect of the matter and simply the applicant has stated in para.14 of the present application that he was pressurized by law-enforcing agencies and particularly through one Mr. Bhohiou, Inspector, National Accountability Bureau but neither any particulars of said allegation have been brought on record nor even any certificate issued by the NAB Authorities to the effect that Mr. Bhohiu ever remained as Inspector in National Accountability Bureau, has been filed, furthermore the said call by Inspector Bhohio hag not been stated by the applicant in his affidavit filed in support of the present application. The record also shows that the present application was filed by the applicant after the expiry of one year and ten months from the date of passing of the consent decree and, in case, if any misrepresentation was made by the respondent No,1 or any fraud was practised, what were those circumstances which compelled him to remain silent for such a long period from the date of the passing of the decree which also remains unexplained by the applicant.
11. The contention of the learned counsel for the applicant is that status quo was operating at the time of passing the consent decree which fact has been concealed by the respondents before the Court and, in case, the same had been pointed out, the compromise application would had not been accepted. The contention raised by the learned counsel for the applicant seems to be devoid of any force as the status quo was not operating thereby prohibiting the parties not to get their matter decided amicably before the Court nor it could be pleaded by the learned counsel for the applicant that the said status quo was operating against acceptance of any compromise application. The status quo in any way does not prohibits the parties to the litigation to enter in compromise during the pendency of, the lis. Rule 3 of Order XXIII, C.P.C. Speaks about compromise of the dispute between the parties at any stage of the proceedings even before the appellate Court as such the parties to this status quo is in any way could not be said to had been restrained to get their lis decided amicably. The learned counsel for the applicant has, therefore, failed to point out that the parties were restrained by the learned DB of this Court who passed order regarding the status quo, not to arrive at amicable settlement throughout proceedings of the suit.
The interpretation of the terms status quo put forward by the learned counsel for the applicant in my humble opinion is, therefore, quite wrong and misleading even the learned counsel -for the applicant has failed to point out the said order dated 14-2-2003 passed in H.C.A. No,99/93 on the record of the present application or on the record of main suit
12. The learned cannel for the applicant has also argued that the applicant was under the fear of the respondent No,1 before the signing the said compromise application but, as discussed above, no such illegal influence has been proved on the basis of allegation brought on record. The applicant had sufficient opportunities to refuse the acceptance of the terms of compromise application, if really he was under intimidation, duress or threat at the hands of the respondent No,
1. The contention raised by the learned counsel for the applicant, therefore, seems to be devoid of any force.
13. The contention of the learned counsel for the applicant that the issue with regard to misrepresentation and fraud played by the respondent may be framed and evidence may be recorded but the application, itself is not maintainable in absence of specific allegations of misrepresentation and fraud which require recording of the evidence as such the said contention of the learned counsel for the applicant has equally no substance. The case-law relied upon by the learned counsel for the applicant in my humble opinion are completely distinguishable from the circumstances of the present case as none of the authorities cited by the learned counsel for the applicant speaks about the proposition that the consent decree could subsequently be challenged by the Judgment-debtor on the allegations of misrepresentation and fraud and that too after the span of more than one year and ten months.
14. For all the aforesaid reasons and circumstances I do not find any merit in the present application which is hereby dismissed with no order as to cost.