'ARSHAD NOOR KHAN, J.---By this civil revision application, the applicant has challenged the judgment and decree, dated 23-5-2008 and 30-5-2008, respectively, passed by the learned IVth Additional District Judge Hyderabad, whereby the First Appeal was dismissed and the judgment and decree, dated 15-1-2007 and 18-1-2007, respectively passed by the learned Vth Senior Civil Judge Hyderabad in F.C. Suit No, 79 of 1994 (Muhammad Ibrahim v. Province of Sindh and others), has been maintained.
2. The facts giving rise to the present revision application in brief, are that the respondent No,1 had filed F.C. Suit No,79 of 1994 for partition, restoration of possession, mesne profit, permanent and mandatory injunction against the present applicant, claiming therein 50 paisa share in Property No,A/1051 Hala, which was their ancestral property, on the ground that the said property left by their late father, therefore, the respondent/plaintiff was also share-holder in equal share. The partition of the property has also been claimed as stated above. The applicant was served with the notice, who appeared before the learned trial Court and refuted the claim of the respondent, denying his claim of 50 paisa share in the property in question, stating therein that Mst. Hajiani Fatima is also share-holder in the property in question being widow. The learned trial Court after framing the issues, recording the evidence and hearing the parties dismissed the suit filed by respondent. The respondent No,1 being aggrieved with the said judgment and decree passed by the learned trial Court preferred first appeal before the learned District Judge Hyderabad, who transferred the same to learned Pith Additional District Judge Hyderabad, who remanded the case for fresh adjudication after impleading the legal heirs of Mst Hajiani Fatima, who by that time had expired.
On remand and impleading of the legal heirs of Mst. Hajiani Fatima the learned trial Court had also amended the issues and parties were allowed opportunity to lead evidence in support of their respective claim. The parties led the evidence in support of their claims and learned trial Court on evaluation of the evidence on second round of litigation was pleased to dismiss the suit, against which the appeal was again preferred before the learned District Judge Hyderabad, who transferred the same to learned Vth Additional District Attorney Hyderabad, who by consent of the learned counsel for parties, again remanded the matter to learned trial Court for fresh adjudication fter recording the evidence of the parties on all the issues involved in the suit. The learned trial Court after remand of the matter and recording of the fresh evidence decreed the suit. The applicant being aggrieved with the judgment and decree preferred with civil appeal before the learned District Judge Hyderabad, who transferred the same to learned IVth Additional District Judge Hyderabad and learned appellate Court after hearing of learned counsel for the parties was pleased to maintain the judgment passed by the learned trial Court. Hence this revision application.
3. I have heard Mr. Eijaz Ali Hakro, learned counsel for the applicant, Mr. Saeeduddin Siddiqui, learned counsel for respondent No,1 and Mr. Mumtaz Alam Leghari learned Assistant A.-G.
4. Learned counsel for the applicant has contended that the learned appellate Court travelled beyond the evidence available on record and wrongly observed that the consent decree was passed by the trial Court and the consent decree could not be subject to an appeal under section 96, C.P.C. He further contended that the learned appellate Court has taken him to surprise by non- suiting the applicant on the ground that the consent decree could not be challenged, whereas the decree passed by the learned trial Court was not consent decree and it was a decree on merits after appraisal of evidence. He further contended that the learned trial Court did not record the finding on each issue framed by the trial Court, as such the evidence available on record have not been considered in its true perspective and judgment passed by learned appellate Court suffers from legal infirmities, which is to be checked under section 115, C.P.C. In support of his contention he has relied upon the case reported in 2008 SCMR 428, 1996 SCMR 669 and PLD 1996 Peshawar 200.
5. Mr. Saeeduddin Siddiqui, learned counsel for respondent No,1 vehemently refuted the arguments advanced on behalf of the applicant and has contended that the learned appellate Court has considered the whole evidence available on record while dismissing the appeal filed by the applicant and no jurisdictional defect is apparent on the face of judgment passed by learned appellate Court. He further contended that the decree was in fact a consent decree involving all the propositions that after the death of Mst. Hajiani Fatima, who was the mother of applicant as well as respondent No,1, both the sons of deceased Mst. Hajiani Fatima have inherited shares in the property in question, therefore, there remained no dispute amongst the parties over the share of parties over the property left by their deceased father and mother. He further contended that since no misreading or non-reading of the evidence is apparent on the face of judgment passed by the learned trial Court, as such judgment passed by the appellate Court did not suffer from any illegality or irregularity, which is to be checked in the revisional jurisdiction of this Court. In support of his contention learned counsel has relied upon the cases reported in PLD 1998 Karachi 111, PLD 2000 Karachi 280, 2001 CLC 1814, 2002 CLC 295 and 1988 SCMR 1655.
6. Mr. Mumtaz Alam Leghari, learned Assistant A.-G.. Has also adopted the arguments advanced by learned counsel for the applicant and has not supported the judgment passed by learned appellate Court.
7. I have considered the arguments advanced on behalf of the parties and have gone through the material available before me.
8. The contention advanced by Mr. Eijaz Ali Hakro, learned counsel for the applicant that the learned appellate Court went beyond the evidence available on record while dismissing the appeal by holding that the decree passed by the learned trial Court was a consent decree, against which an appeal does not lie under section 96, C.P.C. Perusal of judgment dated 15-1-2007 and decree dated 18-1-2007, passed by learned Vth Senior Civil Judge Hyderabad, shows that it was a decree on appraisal of the whole evidence available on record and there is nothing on record to show that the judgment and decree passed by the learned trial Court were defective, in fact the decree passed by the trial Court is a decree passed after consideration of whole evidence on issues involved in the matter, as such the judgment passed by the trial Court does not speak that it is based on a consent decree. A perusal of the judgment passed by the learned appellate Court impugned herein shows that the learned appellate Court had non-suited the applicant merely on the ground that the decree passed by the trial Court was the consent decree. The observation made by the learned appellate Court is usefully quoted herein below for the sake of convenience: "In this case all legal heirs of Hafiz Shafi Muhammad got entered into the compromise and the learned Ist Additional District Judge Hyderabad accepted their compromise per their terms and conditions. Since then parties have entered into two or four rounds of litigations in respect of same property and to the extent of same cause of action.
"In compromise decree it was decided by parties that the property bearing C.S. No,A/1051 will be mutated in the name of appellant, respondent No,1 and in the name of their mother Mst. Hajiani Fatima, Property No,1051 has been mutated in the name of above persons but the partition of the property has not been done till today.
"The true test for determining whether or not a decree should be regarded as a consent decree, lies in ascertaining the real intention of the parties, and not merely whether a particular procedure, for example the one embodies in Order XXIII, rule 3, C.P.C. Has been observed. If, from the circumstances of the case, the real intention of the parties can be gathered to the effect that they are binding themselves to a particular decree by reason of an agreement, compromise or adjustment then the decree must be regarded as a consent decree, from which no appeal would lie in accordance with section 96(3). Most of such cases would fall within the purview of Order XXIII, rule 3, C.P.C.
"In this case Article 114 Qanoon-eShahadat Estoppel will come in existence which say as under:- "Estoppel 114. When one person has, by his declaration, act or omission, intentionally caused or permitted another, person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceedings between himself and such person or his representative, to deny the truth of that thing.
"As it has come on record that all parties have compromised in the case and consent decree was passed after execution of compromise application and consent statement was filed by all the parties. Appellant and respondent No,1 are also the signatories to the consent statement now they are estopped from re-opening the said matter again in view of the fact that consent statement amounted to family settlement and on adjustment which was at par with a compromise and was protected under Order 23, rule 3 C.P.C. Such compromise being sacrosanct had created estoppel against parties to that agreement, who had entered into it, though it could not operate as res judicata. Such estoppel would arise with regard to all matters dealt with actually or by necessary implication in such an adjustment and amounted to a contract between parties and had as such a binding effect upon all those who had signed it, in estoppel signatories to that statement could not be allowed to back out from the same
9. A perusal of the observation made by the learned appellate Court shows that he travelled beyond the pleadings and evidence led by the parties and judgment and decree of the trial Court as discussed above, is completely silent about the consent of the parties. The learned appellate.
Court has also recorded the finding under Article 114 of the Qanun-eShahadat Order, 1984, whereby accusing the appellant of guilty of estoppel, which was not the point before the learned appellate Court, because the decree was not a consent decree, therefore, no estoppel operates against the decree of learned trial Court. Learned appellate Court while maintaining the judgment and decree passed by the learned trial Court, as discussed above, has observed that the decree was a consent decree, which was not the case of either of the parties before it. The applicant in his memo of appeal before the appellate Court never claimed about the consent decree and similarly the respondent did not claim it to be a consent decree and the learned appellate Court has decided the appeal on a new ground without serving a notice on the parties, therefore, the applicant was taken to a surprise by the appellate Court while rejecting the appeal, as the applicant has also not been heard by the appellate Court on the point that the decree was a consent decree. On this aspect of the matter, the bright principles of natural justice have been violated by the learned appellate Court.
10. The learned counsel for the respondent No,1 has vehemently contended that the judgment passed by the appellate Court did not suffer from any illegality or irregularity or suffers from jurisdictional defect, as the whole evidence has been considered by the appellate Court and the applicant has hardly any scope in the present revision application. There is no cavil to the proposition that the revision is only maintainable when the jurisdiction not vested in trial Court has been exercised or the jurisdiction vested in it has been refused to exercise and the jurisdiction has been exercise perversely, the judgment and decree could be examined and checked by the appellate Court. In the present case as discussed above, the judgment passed by the appellate Court suffers from inherent infirmities of making the observation that consent decree could not be challenged under section 96, C.P.C., whereas neither the decree impugned before him was consent decree, nor the applicant has been heard before recording such observation by learned appellate Court, as such patently the judgment passed by the appellate Court suffers from jurisdictional defect, which could be checked by this Court in exercise of its jurisdiction under section 115, P.P.C.
The case-law relied upon by the learned counsel for the applicant no doubt, speaks about the scope of section 115, C.P.C., which has been discussed in the earlier part of this judgment and it has been observed that the learned appellate Court did not exercise the jurisdiction vested in it legally and properly, therefore, in my humble opinion the case of the applicant finds support from case- law relied upon by the learned counsel for the applicant.
11. For the aforementioned facts and circumstances I find that the judgment and decree passed by the appellate Court suffers from legal infirmities and suffers from jurisdictional defect, as such it could not be C sustained. The revision application is allowed and the judgment and decree passed by learned appellate Court is set aside, and the case is remanded to the learned District Judge Hyderabad for either disposal of the appeal by him or it may be entrusted to any other Additional District Judge at Hyderabad than the IVth Additional District Judge Hyderabad for disposal according to law, within a period of three months from the dated of receipt of this order. In such circumstances, I leave the parties to bear their own costs.
'Mr. Eijaz Ali Hakro, learned counsel for the applicant has pointed out that the execution application in the present case is pending before the trial Court, which is hereby stayed till the receipt of this order by the lower Court, whereafter it will be the domain of the learned lower Court to pass necessary orders in this behalf.