1. Deferred.
2. Exemption granted but subject to all just exceptions.
1. 3&4. The instant High Court Appeal has been filed impugning the order dated 18.9.2019 passed by the learned Single Judge in J.M. No.06 of 2019.
2. The counsel for the appellant stated that the order of the learned Single Judge is not in accordance with law and may, therefore, be set aside as in his view the learned Single Judge has not considered the true spirit of the Judicial Miscellaneous Application filed under section 12(2), C.P.C. and the appellant and his two brothers were mis-represented in entering into an alleged compromise on the basis of the letters dated 17.3.2018 and 22.3.2018 respectively . He stated that the learned Single Judge has not considered the fact that the appellant and his two brothers were under immense pressure to sign the compromise otherwise they would never be able to see their parents again. He, therefore, stated that under the circumstances the matter may be remanded to the learned Single Judge to consider the application afresh on the basis of the facts obtaining in the instant matter .
3. Mr. Mohamed Vawda Advocate has appeared on behalf of the respondents after getting notice under Order XLIII, Rule 3, C.P.C. He has also filed counter-af fidavits to the memo of appeal as well in respect of the application for stay. He has vehemently opposed the instant appeal and stated that this HCA is misconceived and is liable to be dismissed with heavy costs as, firstly , no fraud or misrepresentation has been shown with regard to obtaining the order dated 12.11.2018. He further stated that the attorney of the appellant has participated in the suit proceedings and has filed an application under section XXIII, Rule 8, C.P.C. (compromise application) duly bearing his signatures and with the consent of all the parties present before the Court on the said date when, admittedly , the attorney of the appellant was also in attendance and order on the said compromise application (C.M.A. No.15926 of 2018) was passed by the learned Single Judge and thereafter the application was allowed and the suit was decreed as per the terms of compromise between the parties. He stated that the instant appeal is an afterthought on the part of appellant and may , therefore, be dismissed.
4. We have heard both the learned counsel at considerable length and have perused the record.
5. There is no cavil to the proposition that the application under Order XXIII, Rule 3, C.P.C. (C.M.A. No.15926 of 2018) filed on behalf of the parties duly contained the signature of the attorney of the appellant as Defendant No.3 in the suit, which is available at page 147 of the file. It is also noted that the attorn ey of the present appellant has appeared before the learned Single Judge on 12.11.2018 through a special power of attorney , which subsequently was placed on record and at no point of time it was pleaded that the said power of attorney was fake/bogus or that the appellant has not constituted Mr. Zahid Mehmood as his legal and lawful attorney to represent him in the matter and to enter into the compromise on his behalf. It is in this background that when all the parties have compromised with each other that the learned Single Judge in presence of all the parties pass ed order dated 12.11.2018 and, thereafter , J.M. No.06 of 2019 under section 12(2), C.P .C. has been moved.
6. From the facts noted above no case of fraud or misrepresentation has been found out as interestingly the J.M.
7. No.06 of 2019 (under section 12(2), C.P.C.) was also filed through the same attorney, who has compromised the matter on behalf of the present appellant, which belies the instance of the appellant with regard to any fraud or misre-presentation being played as how a person playing fraud and misrepresentation can file an application under Order XXIII, Rule 3, C.P.C. who was a legal and lawful attorney and that very person subsequently file an application under section 12(2), C.P.C. by saying that the order was obtained by way of fraud and misrepresentation. What was the occasion for him to enter into a compromise with the other side and sign the compromise application as a duly cons tituted attorney of the present appellant then file an application under section 12(2), C.P.C. It is strange to note that the present appeal has been filed by appointing yet another attorney by the appellant, which clearly shows that the wavering attitude of appellant.
8. It is a settled proposition of law that decrees obtained on the basis of consent/compromise are not challengable until and unless the same are proved to be obtained by way of fraud and misrepresentation. In the instant case, as noted above, no occasion either of playing fraud or that of misrepresentation has been pointed out as, firstly , the case was duly represented by the attorney of the A appellant and, secondly , how could there be an occasion of playing fraud when all the parties have entered into a compromise by filing a proper application and then duly appearing before the learned Single Judge in support of their compromise application. In the instant case it is not even remotely suggested that the attorney appearing for the appellant and entering into a compromise in any way not his attorney or there were some motiv ation of fraud or misrepresentation by him so as to prefer the application A under section 12(2), C.P.C. Neither it has been proved that the contents of the application were unlawful or void nor was it proved that the said application in any way lacks legal sanctity . For application under section 12(2), C.P.C. the onus heavily lies upon a perso n filing the said application that the order of the Court has been obtained by way of fraud or misrepresentation, which onus as seen from the impugned order and from the record, is totally lacking. The aspect of entering into the compromise due to pressure being exerted from other side also appears to be not borne out from the record. Is the appellant so naive not to take care of his legal rights to adopt the legal procedure in accordance with law against the other party as available to him.
9. We were able to lay out our hands to the decision given by the Hon'bie Supreme Court of Pakistan in the case of Karachi Development Authority v. Messrs Makhdoom Bilawal Cooperative Housing Society and others (2001 SCMR 1277 ) wherein the Hon'ble Supreme Court of Pakistan refused the leave after observing that in a compromise decree no fraud or misrepres entation was proved and affirmed the order if the High Court. In the case of Zaibun Nisa Habib v. Alley Rasool (1989 SCMR 416) also the petition for leave to appeal was dismissed by the Hon'ble Supreme Court of Pakistan after finding that various orders having been passed, by consent, hence, there was no scope for grant of petitione r's application under section 12(2) read with section 151,C.P .C. and the order of the High Court was not interfered with and was found to be in accordance with law in that very case.
10. In the instant case also the suit was decreed as per the terms of compromise application filed by the parties, who were available when the order on the said compromise application was passed, hence, from the facts obtaining in the instant matter no case of fraud or misrepresentation has been pointed out or made out by the learned counsel appearing for the appellant. The order of the learned Single Judge seems to be in accordance with law and does not warrant any interference on our part. This High Court Appeal being bereft of any merit and misconceived is hereby dismissed in limine, along with the listed application.