1. ' SAJJAD ALI SHAH, J.---Through this appeal Order dated 20-1-2014 passed in J.M. No,2 of 2013 (Suit No, 1225/2010) has been impugned, whereby a learned Judge of this Court on the Original Side held that the Respondent No,1 (Defence Housing Authority), cannot on the basis of settlement/compromise arrived at between the appellant and Respondent No,2, be directed to transfer the "subject plot" in the name of the Appellant/Decree Holder.
2. ' Briefly, the appellant and the respondent No,2 (through Attorney) on 6-2-2001 entered into an agreement of sale whereby the respondent No,2 through Attorney agreed to Sell Plot bearing No,169, admeasuring 2000 square yards, situated on 22nd Street, Phase VIII of Pakistan Defence Housing Society Karachi (hereinafter referred to as "subject plot") to the appellant against total sale consideration of Rs,35,00,000/-. The Agreement further records that entire amount was paid in lump sum upon signing of the sale agreement. It appears that somehow the other, the respondent No,2 did not transfer the subject plot in favour of the appellant, consequently, on 30-7-2010 a suit seeking specific performance of the sale agreement dated 6-2-2001 was filed against the respondent No,2 of course through Attorney.
3. ' It appears that on 30-8-2010, just after 30 days of filing the suit, a compromise application under Order XXIII, Rule 3, C.P.C. (C.M.A. No,8544/2010) was filed with urgent motion and on the same day a compromise decree was passed whereby the defendant/respondent No,2 undertook to transfer the "subject plot" in favour of the appellant within seven days, failing, Nazir of this Court was to transfer the same in favour of the appellant. It appears that the respondent No,2 failed to transfer the suit plot in favour of the appellant and when the appellant through Nazir applied for transfer of "said plot" in his name the respondent No,1 filed an application under section 12(2), C.P.C. Which was dismissed on account of non-prosecution, its restoration application and appeal both were dismissed being barred by time. On appellant request the Nazir was directed to continue the process of transfer and in that pursuit Nazir made a Reference stating that the officer of the DHA who has appeared before the Nazir, refused the transfer on the ground that the respondent No,2/Judgment Debtor had no title in his favour which could be transferred in favour of the appellant/Decree Holder and the learned Judge after hearing the parties decided Reference by holding that the respondent No,1/DHA cannot be directed to transfer the subject plot in the name of the appellant on the basis of a compromise arrived at between the appellant and the respondent No,l. This order has been impugned by way of instant appeal.
4. ' Ms. Rizwana Ismail, learned counsel appearing for the appellant contends that the respondent No, 1 vide its letter dated 3-3-1976 intimated the respondent No,2 regarding allotment of the "subject plot" in his favour, whereafter the respondent No,2 on 9-11-1976 executed Power of attorney in favour of one Sadiq Sharif empowering him inter alia to sell the "subject plot". The said Sadiq Sharif as Attorney of the respondent No,2 ,entered into an agreement of sale in respect of the "subject plot" with the appellant on 6-2-2001 and received the entire sale consideration of Rs,35,00,000, however, on his failure the appellant was compelled to file suit on 30-7-2010 seeking specific performance of agreement dated 6-2-2001, the suit accordingly was decreed in favour of the appellant on the basis of a settlement which was arrived at between the parties on 30-8-2010 and therefore, the respondent No,1 is bound to transfer the subject plot in favour of the appellant. It was next contended that the appellant is a bona fide purchaser for valuable consideration and is entitled to the protection in terms of section 41 of the Transfer of Property Act. Counsel lastly contended that the subject plot till date stands in the name of the respondent No,2 and the respondent No, 1 malafidely and in derogation of the decree despite rejection of their application under section 12(2), C.P.C. Is not submitting to the decree of Court by transferring the subject plot.
5. ' On the other hand Mr. Nazar Hussain Dhoon, learned counsel appearing for the DHA contends that since the DHA was not a party to the proceedings, therefore, its stance refusing the transfer of the plot was never adjudicated and therefore, vires of the consent decree does not extend upon the DHA. It is contended that after the decree the DHA contacted Central Officers Record Office, General Headquarters, Rawalpindi to ascertain exact position of the allottee of subject plot and it transpired that Capt. Muhammad Rafique respondent No, 2 on 1-2-1975 was convicted and dismissed from Pakistan Army by a Court Martial whereas he fraudulently applied for allotment of plot on 13-12-1975 after dismissal from service and that is why he did not turn up for more than quarter of century and then sought transfer on the basis of a decree obtained through manipulation and fraud. It was next contended that all what the respondent No, 2 had, was just an intimation letter dated 3-3-1976 and not even allotment. Per counsel neither the plot was formally allotted nor its possession was ever handed over to the respondent No,2, therefore, he had no valid title to transfer. It was next contended that DHA allot plots only to serving or retired officers who are found eligible for allotment and not to an officer who is dismissed or whose services are terminated. It was lastly contended that according to the DHA Rules transfer of plot is after verification of the documents as well as the allottees and that too in the office of the DHA after verification and through identifications. Mr. Dhoon has placed reliance on the Judgment of this Court in the case of Capt. Muhammad lqbal v. Federation of Pakistan (2009 MLD 810) and Mustafa Lakhani v. Pakistan Defence Officers Housing Authority, Karachi (PLD 2005 Karachi 188) to contend that in case foundation of the allotment of a plot is on misrepresentation then even lease would be illegal, void, ab initio and of no effect.
6. ' We have heard the learned counsel for the respective parties and have perused the record as well as the case-law cited at bar.
7. ' The admitted position as it emerges from the record is that all what the respondent No,2 had was just an intimation of allotment, admittedly issued by the respondent No 1 on 3-3-1976 and after receipt of this intimation of allotment the respondent No,2 never contacted the respondent No,1 for either payment of dues or perfecting his title even he did not bother to get an allotment order, all what he did was to execute an unregistered Power of Attorney on 9-11-1976 (if proved) and then totally disappeared. The scrutiny of the sale agreement between the respondent No,2 and the appellant further reflects that it records the entire payment which in fact turns this document into a sale deed and for want of stamp duty liable to confiscation. Besides it is also very strange that the sale agreement even does not specify the mode of payment i,e, as to whether it was made by cash or through cheque. Notwithstanding, it also needs to be explained that once the appellant had made the entire payment of plot in the year 2001 then why he had to wait for 10 years for getting it transferred in his name and on the top of it when the suit is filed after 10 years a decree is obtained within 30 days in order to have a free ride on the process of this Court for getting the subject plot mutated in favour of the appellant which otherwise the respondent No,1 would have never mutated. We wonder what made the appellant to purchase a plot which had no title document nor even an allotment order that too on the basis of a 25 years old unregistered power of attorney and then to sleep over it for a period of 10 years. In our opinion a man of ordinary prudence before making payment of such a huge amount for purchasing a property which even had no allotment order ought to have asked for the allotment order and its transfer in his name. The observation hereinabove precludes us from assuming the bona fide of the appellant. Additionally, the appellant has totally failed to take due care required for claiming the status of bona fide purchaser for valuable consideration.
8. ' The second most important question involves in this appeal is that as to whether an object which cannot be achieved directly could be achieved indirectly. The respondent No,2, the alleged vendor, if was not entitled to the allotment of a plot or had obtained such allotment fraudulently, then the respondent No,1 under the bye-laws was competent, to cancel such allotment which process the respondent No,2 could not defeat by transferring the "subject plot" to a third party as the vendee does not get any better title then the vendor himself had. Mr.Dhoon has rightly referred to the case of Capt. Muhammad lqbal (supra) wherein a Division Bench of this Court had observed that where foundation of the allotment is resting on misrepresentation then a person cannot be allowed to retain ill-gotten gain and the Court will not come to aid a person to retain a benefit or privilege to which he was not entitled at the very inception. It was further ruled:- "From the basis of allotment being illegal, void ab initio, consequently no legal right was conveyed as such payment and execution of 'A' lease in favor of petitioner was illegal void ab initio hence of no effect at ' would not create any right or privilege in favor of petitioner in respect of said plot, therefore, the respondents were quite competent to cancel the allotment of plot under proviso (1) of Article 17(h) of the President's Order No, 7 of 1980"
9. ' Lastly, the submission of Mr. Dhoon that since the respondent No,1 was not a party in the suit, therefore, is not bound by the decree obtained by the appellant against respondent No,2 through concession is also not without substance. A Division Bench of Peshawar High Court in the case of Syed Kamal Shah v. Sher Baz Khan (1994 MLD 2334) held that any person who was not a party to the suit would not be bound by the ultimate decree. In our opinion even otherwise, a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the Court super-adding its seal to a contract and since the compromise even after it is super- added with the seal of the Court has almost all the ingredients of a contract, therefore, it can be set aside on any of the ground on which a contract could be attacked such as raud, mistake or misrepresentation. Beside, since only the parties who are signatory to the contract are bound by the terms and conditions so recorded and agreed upon between them, A likewise, the Court would not while enforcing the terms and conditions so agreed between the parties to the contract notwithstanding that such contract is superadded with the seal of the court and turned in a consent decree would compel a third party to obey unless a fiduciary relationship between the judgment debtor and such third party is established.
10. ' In view of what has been discussed above, no case for interference with the impugned order has been made out. The appeal therefore, is dismissed.