'RAJA MUHAMMAD SHAFQAT KHAN ABBASI, J.---Through this petition, the petitioner Noor Muhammad and seven others have assailed the judgment and decree dated 19-10-1995 passed by learned appellate Court, Lodhran whereby the appeal filed by the respondent/plaintiff namely Khan Muhammad and four others was accepted and the order dated 10-4-1995 passed by the Civil Judge, was set aside and decreed the suit of the plaintiff and made the award dated 25-9- 1994 as rule of Court.
2. Respondent/plaintiff Khan Muhammad and others filed suit for declaration in which they have challenged the order of Additional Deputy Commissioner (Consolidation) dated 25-9-1990 and order dated 11-2-1991 A passed by the Additional Commissioner, During the pendency of suit, parties referred the matter to Arbitrator and agreement was executed whereupon award was signed by the majority in favour of respondent/plaintiff Khan Muhammad. The petitioner/defendant Noor Muhammad and others filed objection that award has been filed without intervention of the Court. Whereupon learned trial court on 10-4-1995 held that award was without intervention of the court hence have no legal force and cannot be used for the settlement of the dispute between the parties. Respondent/ plaintiff Khan Muhammad and others assailed this order dated 10-4-1995 in appeal, which was accepted by the District Judge, Lodhran on 19-10- 1995 hence this revision petition filed by Noor Muhammad petitioner/defendant.
3. Heard. Record perused.
4. I have heard the learned counsel for the parties at considerable length and have also gone through the report/award dated 25-9-1994 in which three arbitrators have decided in favour of the plaintiff/respondent after hearing all the parties whereas 4th arbitrator namely Malik Umar Ali Patwari differed with the decision. I have also gone through the impugned judgment dated 10-10- 1995 of Additional District Judge who has considered the arbitration agreement (annexure-E) i.e, Iqrar nama/Salis nama in detail. The order sheet of the trial Court dated 7-9-1994, 19-9-1994, 27-4- 1994 and 26-10-1994 indicates the names of the arbitrator. Arbitration agreement, Award is found mentioned in it but trial court has wrongly come to the conclusion that as parties entered into the arbitration agreement without intervention of the court and award filed in the court has no force.
The petitioner has no right to resile from their consent. It is settled principle of law that party to the suit, before passing the decree can make agreement and settle their dispute in terms of section 21 of the Arbitration Act 1940. The appellate court has rightly made a award as a rule of Court. There is no bar on the parties to get )3 their case decided by mutual agreement at any time prior to the final adjudication. Under Order XXIII, rule 3, C.P.C. If the parties enter into a lawful agreement or compromise adjusting their suit wholly or partly, and the court is satisfied of such C adjustment, it is bound to record such compromise and pass a decree in accordance therewith. Thus, in case of valid adjustment in a pending suit through compromise of the parties, the Court cannot pass a decree except in accordance with the terms of the compromise. Upon the language of rule 3 of Order XXIII, existence of a lawful agreement is one of the essential pre-requisites for applicability of the provision. Reference can be made in case of Messrs Jame's Construction Company (Pvt) LTD v.
Province of Punjab through Secretary to the Government of Punjab (Communication and Works)
Department, Lahore and 3 others PLD 2002 Supreme Court 310.
5. Perusal of the impugned judgment reveals that the conclusion arrived by the appellate Court is elaborate and is based on cogent reasons. No misreading or non-reading of evidence or any other legal D infirmity has been found with the judgments rendered by the appellate court warranting interference by this Court in a:visional jurisdiction. As per the dictum of law laid down by honourable apex Court in cases of Aurangzeb through Legal heirs and others v. Muhammad Jaffar and another 2007 SCM R 236, Shafi Muhammad and others v. Khanzada Gul and others 2007 SCM R 368 and Rashid Ahmad v. Said Ahmad 2007 SCM R 926, findings of fact recorded by the Court below are not open to exception unless it is established that the same E suffered from any jurisdictional defect or were based on misreading or non-reading of evidence, which element is conspicuously E lacking in the present civil revision.
6. Resultantly, there being no merit in this revision petition, the same is hereby F dismissed. No order as to costs.