1. SALAHUDDIN AHMED, J.-This appeal by special leave is from an order of a Division Bench of the High Court of West Pakistan, Lahore, dismissing in limine a First Appeal from the order of the Administrative Civil Judge, Sialkot, recording a compromise in a suit for dissolution of partnership and rendition of account and passing a decree in terms thereof.
2. The suit was valued at Rs. 30,000. Respondent Fazal Din had first asked for a stay of the suit under section 34 of the Arbitration Act, on the ground that the partnership deed had provided that all disputes between the parties should be referred to arbitration. Subsequently the trial Court was informed that the suit had been compromised and, therefore, judgment should be passed in accordance with the terms of the compromise. It was alleged on behalf of the respondents that the parties had in the presence of their lawyers, arrived at a compromise which was duly written and signed by the parties, but as it contained certain alterations made by Choudhury Nazir Ahmed Bajwa (since deceased), learned Advocate appearing on behalf of the respondent, the draft agreement was put off till the next day for preparation of the fair copy. On the next day, after the fair copy had been prepared, the appellant refused to sign the compromise petition on the allegation that the fair copy too contained certain correc--tions. Upon these facts the respondents made an application under Order XXIII, rule 3 of the Code of Civil Procedure, for deciding the suit in accordance with the terms of the compromise petition. This proceeding was contested by the appellant on the grounds that the compromise petition had not been read over to him and that it had been altered by the learned Advocate for the respondents after the former had signed the draft of the compromise petition. Both sides led evidence in support of their respective contentions concerning the question whether a compromise was or was not effected between the parties.
3. Evidence is both adequate and reliable to show that the draft compromise was not read over in its entirety to the appellant. This is borne out by the evidence of P. W. 1, Sheikh Arshad Ali, Advocate, P.
4. W. 2 Hakam Din and P. W. 3, the appellant herein, and corroborated by D. W. 1, Sheikh Nasrullah, Senior Advocate representing the appellant and by petition writer, D. W. 2, Mohammad Yaqoob. D.
5. W. 3, Choudhary Nazir Ahmad Bajwa, Advocate for respondent No. 1, although present on the occasion, was unable to say whether the draft Exh. D. 1 was read out or not.
6. It is evident that one of the parties, namely respondent Mohammad Safdar, was not present on the occasion and did not sign the draft, Exh. D.
1. This is a clear indication that the negotiations that resulted in the draft were still incomplete and the matter was left over till the next day to take a final shape. Admittedly there were corrections in the alleged fair copy of the compromise also, and they were by no means immaterial as alleged on behalf of the respondents. While the draft compromise (vide para. 2(b)) put it as the joint responsibility of all the parties to realise the amount lying in the Banks to enable the appellants to pay to the respondents, the fair copy (vide para. 2(b)) made it the sole responsibility of the appellant to do so although it appears from the draft compromise that the accounts in the Banks could only be operated jointly. Two things however, appear patent on record and are not in dispute. (1) The fair copy was not signed by the appellant ; and (2) the appellant had at the earliest opportunity repudiated the alleged compromise and brought it to the notice of the Court. These two circumstances appear to us to be significant and they should have at once put the Court on guard and the Court should have refused to act on the alleged compromise. The High Court, acting as the first Court of appeal, did not in our opinion, act properly and in the best interest of justice in dismissing the appeal in limine and thus denying itself the opportunity of looking into all the relevant facts pertinent to the decision of the appeal. Be that as it may, in the facts and circumstances of the case it cannot be said with any degree of certainty that there was in fact a compromise between the parties, and the only prudent course was to proceed with the trial of the case. Had it not been for the fact that the case was an old one, having been instituted in the year 1961, and for the likelihood that an order of remand would unnecessarily further delay the matter, to the detriment of both the parties, we would have remanded the case to the High Court for re-hearing of the appeal according to law.
7. However, in order to do complete justice in the matter, we have ourselves carefully examined the evidence. In view of the facts patent on record, as mentioned above, we allow this appeal, set aside the impugned order of the. Court below and remand the case to the trial Court with a direc--tion that it should proceed to decide the suit on merits expeditiously as possible. Costs will abide the result of the suit. Appeal accepted.