' M.S.H. QURAISHI, J.-- The petition arises from a suit brought by respondents 1 and 2 for permanent injunction against the petitioner WAPDA for restraining it from installing poles and passing 500 K.W.
Lines over their land without paying them compensation in respect of mango tres existing in the land. In its written statement, the WAPDA admitted that compensation would be awarded to the plaintiffs in accordance with letter No,2638-40/SE (500 K.W.)P/TL, dated 17-7-1979. In view of this admission in the written statement and also on the basis of the statements made before the trial Court on 4-9-1979 by the Junior Law Officer and Khurshid Ahmad, Assistant Land Acquisition Officer, of the WAPDA, which were accepted by the plaintiff, a compromise decree was passed the same day. However, during this execution of the decree, an application was made on behalf of the WAPDA on 23-6-1980 under section 12(2), C.P.C. Challenging that validity of the compromise decree on the plea that the decree was collusive, that there was no authority in the Junior Law Officer or the Assistant Land Acquisition Officer, to enter into a compromise and that it had been obtained by misrepresentation and fraud. The executing Court, however, held that there was no misrepresentation or fraud involved, that the decree was not collusive and that collusion could not be agitated in the application under section 12(2), C.P.C., and accordingly dismissed the application on 17-12-1980. The WAPDA challenged the decision in revision before the District Judge, Multan, who not only held that the Junior Law Officer being not competent to enter into a compromise, the decree was based upon misrepresentation and as such liable to be set aside, but also that the suit for perpetual injunction was itself not maintainable. He, therefore, by his order dated 17-12-1981, set aside the order of the executing Court, dated 17-12-1980, as well as the decree dated 4-9-1979 and also rejected the plaint under Order VII, rule 11, C.P.C.
2. The matter was then agitated in the constitutional jurisdiction of the Lahore High Court, in which a learned Single Judge after an elaborate discussion of the facts and the relevant law, held that no appeal or revision having been filed against the compromise decree, the same had attained finality though it could be challenged under section 12(2), C.P.C. Only on the ground of fraud, misrepresentation or want of jurisdiction; that the terms "want of jurisdiction" in section 12(2) and "the suit barred by any law" in Order VII, rule 11 are not synonymous; that the combined effect of sections 12 to 16, 18, 19 and 51 of the Electricity Act read with sections 10 and 16 of the Telegraph Act and the Government's Notification No, SO-II(E)2/5-60, dated 6-1-1961 cannot operate as a legal bar to the cognizance or trial of a suit for permanent injunction and that, therefore, in an application under section 12(2), C.P.C. The Court sitting in revision had no legal authority to reject the plaint under Order VII, rule 11 C.P.C. The learned Judge further held that the District Judge could set aside the order of the trial Court, dated 17-12-1980 dismissing the WAPDA's application under section 12(2), C.P.C. But he could not accept the application without there being issues and evidence, for, he had no factual or legal backing to set aside the compromise decree straightaway. The learned Judge, therefore, by his order dated 9-1-1983, which is impugned before us, declared the order of the District Judge to be without lawful authority and of no legal effect and sent the case back to the District Judge for proceeding according to law.
3. It has been argued before us by Mr. Muhammad Ilyas Khan on behalf of the WAPDA that bar to suit was implied by sections 10 and 16 of the Telegraph Act and section 13 of the WAPDA Act inasmuch as the Authority cannot be prevented, by grant of an injunction, from installing poles and passing power lines over the land of the plaintiffs and that all that the latter could seek was compensation. The point was duly considered by the High Court but it was held that the mere fact that WAPDA was authorised to install the poles or pass the power lines without payment of compensation, could not be sufficient to hold that the suit itself was barred by law and the plaint liable to be rejected. After hearing both sides at some length, we are inclined to the view that this is not a fit case for grant of leave. The petition is, therefore, dismissed.