1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to the appellants who are in occupation of property bearing plot No. 37-38/D, Model Town, Lahore, to examine whether the disposal of their constitutional petition strictly in terms of the compromise without examining the, legality of the transfer in favour of the respondents and their own entitlement was in accordance with the law.
2. The petitioners are in occupation of plot No. 37-38/D Model Town, Lahore. They being locals filed L H forms for the transfer of the property in their possession. The Deputy Settlement Commissioner rejected their claim on 26-1-1960 on the ground that they were locals and the pf6perty of which they were seeking transfer was of the value of more than Rs. 10,000. Their appeal to the Additional .Settlement Commissioner was dismissed on 20th March, 1960 and their revision on 30th August, 1960. They filed a constitu--tional petition challenging the refusal of the settlement authorities to transfer the house to them but the same was dismissed on 9th June, 1961. A Letters Patent Appeal filed against that dismissal was not prosecuted and was dismissed in default. Pending these proceedings on 5-12-1960 Haji Azizuddin, the predecessor-in-interest of the contesting respondents, a claimant displaced person, obtained the transfer of this property on account of valuable services rendered in bringing to the notice of the settlement department. a hidden evacuee property namely 40-H,' Model Town, Lahore, the resumption of which, however, was not ordered for certain considerations. This concluded, it appears, the first round of litigation with regard to the property in dispute.
3. On the enforcement of Settlement Scheme No. VIII the appellants filed claims for transfer of this property-as available property on the ground that the transfer made in favour of Haji Azizuddin was void; had no roots or sanction in law and for that reason the property was available and they- were in undisputed occupation of it. The Deputy Settlement Commissioner rejected the claim on 11- 6-1969 treating the property as not available and held the transfer in favour of Haji Azizuddin as valid and proper. The Additional Settlement Commissioner, it appears, had remanded the proceedings thereafter for examination afresh but the Settlement Commissioner by his order dated 27th March, 1974 restored the order of the Deputy Settlement Commissioner and the transfer in favour of Haji Azizuddin was maintained. This order of the Settlement Commissioner was challenged by a constitutional petition. During the pendency of the constitutional petition the parties entered into a compromise. The statement of the two appellants and of respondent No. 1 was recorded separately. The appellant No,. 1 in his statement recorded by the learned Judge reproduced the terms of the compromise as follows :- , "The terms of the agreement are that I shall get plot No. 38-D Model Town, Lahore and shall have no claim in respect of Plot No. 37-D Model Town, which now stands transferred in favour of legal heirs of Haji Azizuddin, respondent No. 1. For getting Plot No. 38-D, Model Town, Lahore, I shall pay in cash a sum of Rs: 11,000;'to the learned counsel for the legal heirs of respondent No. 1 by or before 15th July, 1975. 1 shall also deliver vacant and peaceful possession of Plot No. 37-D, Model Town, Lahore to the learned counsel for the legal heirs of respondent No. 1. In case, I do not abide. By thes3 terms, my petition shall stand dismissed and I shall have no cause of action. I have consulted my wife Mrs. Banjamin and she agrees with me on these terms."
4. The appellant No. 2 after hearing the statement-made by appellant No. 1 endorsed the arrangement and concluded her statement by undertaking as follows :- "We have also to pay in turn a sum of Rs. 11,000 (eleven thousand only) in cash to the learned counsel for the deceased heirs of respondent No. 1 by or before 15th July, 1975. We shall also deliver vacant and peaceful possession-of -Plot No. 37-D, Model: Town, Lahore to the learned counsel of the legal heirs of respondent No:
1. In case we do not abide by these terms, we understand it quite clearly that our petition shall stand dismissed."
5. The learned Judge thereafter by an order dated 21-5-1975 which is reproduced hereunder approved the compromise and gave effect to it by Court's order :- "The compromise is accordingly allowed. The petitioners shall pay a sum of Rs. 11,000, by or before 15th July, 1975 to the learned counsel for the respondents and also deliver vacant and peaceful possession of plot No. 37-D, Model Town, Lahore The respondents have already paid the entire prices of the two plots namely 37-38-D Model Town, Lahore and they on their part would not claim any adjustment in respect of the transfer price of plot No. 38-D Model Town, Lahore. In these circumstances, the settlement authorities are directed to give effect to the compromise between the parties by making necessary documentation of transfer of plot No. 38-D, Model Town, Lahore, exclusively in favour of the petitioners, and plot No. 37-D Model Town, Lahore. In favour of legal heirs of the deceased Haji Azizuddin, respondent No. 1."
6. The third round started when on 14-7-1975 the appellants filed an application (Civil Miscellaneous No. 5 of 1975) under, section 149 read with section 151 of the C. P. C. For extension of time prescribed under the compromise and the order of Court for making payment to the respondents. The respondent No. 1 on 16-7-1975 filed an application (Civil Miscellaneous Nos. 37-38 of 1975) claiming that the constitutional petition disposed of under the compromise should be dismissed in terms of the compromise as the requisite payment had not been made by the time prescribed in the order.
7. The learned Judge after hearing the parties on these two applications held by order dated 24-10- 1975 as follows: -- "The writ petition stands dismissed automatically. One of the petitioners has not applied for extension of time. The writ petition cannot be said to stand dismissed in respect of one petitioner and at the same time period of payment and delivery of possession extended in favour of the other petitioner. Moreover, the attitude and stand of the applicant is one of not casing the commitment made in solemn proceedings in Court and of adamance to any. Reasonable proposals in the circumstances of the case. This hardly entitles the applicant to discretionary relief. Insistence on extension of time simply for asking without any reasonable justification cannot be given effect to.
8. No reasons have been given for the extension of time in the application. None have been urged.
9. Without any valid and justifiable reason in law, extension cannot be allowed. The application has no merit and is, accordingly dismissed, for statements of the writ petitioners, the writ petition stands dismissed. Direction earlier issued to the Settle--ment Authorities to give effect to the order based on the compromise is recalled. Respondent's application for a declaration that the writ petition stands dismissed has borne fruits. Thus, both C. M. No. 5/1975, and C. M. 3738/75 stand disposed of."
10. By an application moved on 10th March, 1976 the appellants have prayed that this appeal should not be taken to be only against the order dated 24-10-1975 but also against the earlier order dated 21-5-1975 and they sought condonation of the delay on the ground that they were not aware of the technicalities and on the ground that it was a void order as the compro--mise itself was against mandatory provisions of law. This Court while granting leave to appeal on the 8th of March 1981, ordered as follows :- "We, therefore for the reasons shown condone the delay in filing of the petition as regards the impugned order of the High Court dated 21-5-1975 and grant special leave to appeal."
11. The order was not kept subject to all just exceptions or subject to hearing of the respondents. The contesting respondents have taken a preliminary objection and a serious one to the limitation. As regards the challenge to the order dated 21st of May, 1975, apart from the locus standi of the appellants to challenge it they themselves had entered into that compromise, they had invited the jurisdiction of the High Court to recognize it and give effect to it and after it had been acted upon they had committed yet another default, and, when it was sought to be enforced against them they had turned round to object to its legality and validity.
12. As regards the subsequent order dated 24-10-1975, the objection of the appellants to it is that as the time within which the amount was to be paid had not been incorporated and made a part of the Court's order the same was not the essence of the order and the petitioner could be reasonably accommodated even if the time limit was not technically and strictly observed. In addition, it is contended that the appellants had moved in time and on good grounds claiming extension of time to be granted and the same could not be refused so arbitrarily and oppressively.
13. It was a case where the required extension should have been granted and the appellants would have made up the. Deficiency in the amount which they were to pay.
14. As regards the compromise and the order of the Court based upon it passed on 21-5-1975, the attack is on numerous grounds. It is said that in the very first instance the transfer in favour of Haji Azizuddin was flagrantly violative of the law as no provision could be cited for supporting or sustaining it. If that order of transfer is treated as non-existent, a nullity then the property remained available for transfer and there being no ceiling on value of the property under Settlement Scheme No. VIII it could be transferred to the appellants. In any case, according to the appellants, the plot No. 37-D and 38-D Model Town, were two distinct properties and could not be transferred to one claimant who was in possession of no part of either. On that view of the matter at least one of the two plots would be available and it could be transferred to the appellants. Another ground taken up for avoiding the compromise is that as the consequences of the non-deposit of the money had not been incorporated in the order of the Court notwithstanding the statement of the appellants that their constitutional petition would stand dismissed, that result would not follow. The failure to deposit, therefore, at best revived the constitutional petition which would be awaiting decision on merits instead of its dismissal on the basis of the compromise entered into between the parties.
15. A larger bench of this Court has, while granting leave to appeal, expressly and unconditionally condoned the delay in filing the appeal against the order dated 21-5-1975. It affected the valuable rights of the respondent. It was passed at a stage when it could be read and understood always as subject to all just exceptions. We, however, do not propose to supply the omission, or to read limitations into the order which are not ex facie there.
16. The objection of the appellant to the compromise is not that the parties bad not entered into such a compromise, or that the appellants were in fact the victim of any mistake of fact, deception or misrepresentation. The contention is that it was violative of the law governing the disposal of properties fro the compensation pool. It was -opposed to public policy. It had to yield to the mandatory provisions of Displaced Persons (Compensation and Rehabilitation) Act. The law laid down by this Court in Eyan's case (PLD 1964 SC 536) ha been invoked for avoiding the compromise. The second objection to the compromise is that as incorporated in Court's order, it did not provide for automatic dismissal of the constitutional petition in case of non-compliance.
17. The statement of the appellants as recorded by the Court did provide for such a consequence. Not being a part of the Court's order it could not be enforced or given effect to at the request of a party.
18. Finally, on this aspect of the compromise it has been stated that compromise was at best an agreement between the parties, incorporating the penalty in case one of the parties committed a breach. It was open to the Court (section 74 of Contract Act) t relieve fully or partially the party found in breach.
19. 1970 SCMR 180) the parties had substituted by compromise an order of division of property passed Settlement Authority. An effort to challenge the compromise on the legal and jurisdictional ground was disposed of by this Court in the following words :- "The learned counsel for the petitioner has contended that the High Court has no jurisdiction under Article 98 of the Constitution to make orders on compromise. We consider that it does not lie in the mouth of the petitioner to raise this plea. He was a party to the compromise which was filed in the Court and be alongwith others invoked the jurisdiction of the Court to accept that compromise. In these circumstances we consider that the petitioner is disqualified to raise the issue in this petition for special leave, that the High Court was no competent to pass the orders on a compromise in civil jurisdiction."
20. As regards the time fixed by the parties being not of the essence of the agreement the decision of this Court in Ahmed Shah and 2 others v. D Muhammad Yar and 6 others (1974SCMR191) holds the field. It was held in that case that :- "It is evident from these provisions that they apply in a case where the Court has fixed the time. In the present case the time, was fixed as the result of an agreement between the parties, and all things remaining the same such time could not be altered without the consent of all the parties."
21. The appellants were the locals. They were found not entitled to the transfer of the property and this had happened as far back as 1960. Even the transfer in favour of Haji Azizuddin stood finalized in December, 1960. The appellants had failed to establish their locus standi or the illegality of transfer in favour of Haji Azizuddin. Promulgation and enforcement of Settlement Scheme VIII did not put life into a dead horse, reopen a past and close transaction, confer a locus standi on the appellants to enter the arena o. Contest once more, and to challenge the transfer on new and fresh grounds The property was not in fact an available property so far as the Settlement Organization was concerned and the refusal to treat it as not an available property could not be said to be a decision against law. In this background if the appellants voluntarily agreed to compromise the matter even they were bound by the terms of the compromise. Neither on the grounds of law nor of propriety the judgments delivered by the High Court and impugned before us require interference.
22. The appeal is therefore dismissed with no order as to costs.