' This revision under section 115, C.P.C. is directed against judgment dated 15-5-1978 delivered by the Additional District Judge, Dera Ghazi Khan.
2. The facts briefly stated are that Iqbal Hassan deceased petitioner-plaintiff instituted a suit in the Court of the Civil Judge, D.G. Khan on 8-5-1976 against the respondents-defendants for a declaration to the effect that he was the owner in possession of House No. 1, Block No. 2, D.G. Khan and that he had executed no sale-deed in favour of the respondents-defendants nor had he received any consideration for sale of the said house, and that the five sale-deeds in dispute were the result of fraud and forgeries practised by the respondents-defendants, with the consequential relief of permanent injunction to restrain the respondents-defendants from having the sale-deeds registered and from interfering in the rights title interest etc. of the petitioner-plaintiff in the property in dispute.
3. During the trial of the suit the matter was referred to two referees, namely Sheikh Noorullah and Kazi Arif Hassan Advocate on 27-11-1976 who submitted their report on 12-1-1977.
4. The petitioner made an application for referring the points not decided by the referees to them again.
5. The application and the suit were, however, both dismissed on 14-3-4977 with a direction to the respondents to deposit Rs. 96,000 in Court for payment to Iqbal Hassan petitioner-plaintiff.
6. The petitioner preferred an appeal against the aforesaid judgment and decree of the trial Court before the learned Additional District Judge, D.G. Khan.
7. During the pendency of the appeal, on 26-1-1978, the learned counsel for the petitioner made a statement before the Appellate Court to the effect that a compromise had been reached between the parties and the appeal be disposed of as withdrawn. This statement was made by counsel for the petitioner on the basis of a telephone call received by him from some person stating on behalf of Iqbal Hassan petitioner that he had compromised the matter with the respondents and that the counsel should receive a sum of Rs. 8,000 from the respondents and withdraw the appeal.
8. In view of the statement of the counsel for the petitioner the learned Appellate Court by its judgment dated 26-1-1978 dismissed the appeal as withdrawn, leaving the parties to bear their own costs.
9. The petitioner, however, made an application to the learned Additional District Judge, D.G. Khan, on 12-2-1978, under Order XLI, rule 19 and section 151, C.P.C. for re-admission/restoration of the appeal dismissed as withdrawn as mentioned above. In the application the petitioner alleged that he never gave a telephone call himself or through some one else for withdrawing the appeal or for that matter for receiving the sum of Rs. 8,000 in consequence of the alleged compromise between the parties; that he never entered into any sort of compromise with the respondents, that the respondents manipulated the telephone call and the counsel for the petitioner was led into fraud by the respondents to withdraw the appeal, that the act of the respondents was a forgery and fraud which they practised on the Court as well as the applicant-petitioner and that as soon as the petitioner learnt about fraud having been practised for dismissal of the appeal as withdrawn through the letter of his counsel dated 26-1-1978 he made the application for re- admission/restoration of the appeal.
10. The application of the petitioner was resisted by the respondents whereupon the learned trial Court framed the following issue: "Whether statement dated 26-1-1978 made by Sheikh Ziauddin Advocate for appellant was the result of fraud?"
11. The learned lower Appellate Court by its judgment dated 15-5-1978 dismissed the application of Iqbal Hassan petitioner and declined to re-admit the appeal. Hence the present revision.
12. It may be observed that the petitioner having died during the pendency of this revision, his legal representatives have been brought on record as petitioners.
13. The learned counsel for the petitioner contended that a bare perusal of the order shows that the same is based on wholly extraneous considerations and that without giving any finding on the issue in question by adverting to the evidence on record the learned Appellate Court went into the merits of the appeal and dismissed the application of the petitioner by giving findings on the points involved in the appeal and not in the application under adjudication.
' The only other contention of the learned counsel for the petitioner was that the statement of the counsel for the petitioner clearly showed that the withdrawal of the appeal was not on instructions of the petitioner and that consequently the order of withdrawal of the appeal was obtained through fraud.
14. On the contrary, the learned counsel for the respondents submitted that the dismissal of the appeal as withdrawn vide the impugned judgment was on the basis of the statement of the learned counsel for the petitioner who was competent to withdraw the appeal by virtue of the power-of-attorney executed in his favour.
' It was next urged by the learned counsel for the respondents that the impugned order has been passed with lawful authority and there has been no illegality in passing the impugned order by referring to some points that may be involved in the appeal on merits. The learned counsel for the respondents cited Dr. Ansar Hassan Rizvi v. Syed Mazahar Hussain etc. reported as 1971 SCMR 634 in support of the contention that the counsel for a party was competent to enter into a compromise and settle the dispute unless the authority to do so has been expressly withheld or denied.
15. Having given consideration to the controversy involved I find force in the contention of the learned counsel for the petitioner to the extent that the finding on the issue framed by the Appellate Court is not based on reading of the evidence on record. In fact it appears on a perusal of the judgment of the Appellate Court that if it had confined determination of the controversy with reference to the issue involved the finding may have been different. In this connection the observation "I would not have been hesitant to restore the appeal but for the following reasons" clearly shows that the dismissal of the application of the petitioner was not the result of a finding on the issue under adjudication in the application but on account of matters considered by the Appellate Court with reference to the merits of the appeal. It has been correctly pointed out by the learned counsel for the petitioner that while delivering the impugned judgment the lower Appellate Court could only resolve the controversy regarding the re-admission/restoration A of the appeal and could not have dismissed the application for re-admission on the ground that there was no merit in the appeal itself.
16. I also find that the evidence on record has not been made the basis of the impugned decision but points not related to the controversy under adjudication have been made the premises for dismissing the application. This obviously is an act of material irregularity rather than illegality committed by the learned lower Appellate Court. The impugned judgment therefore cannot be sustained and of necessity has to be set aside.
17. Before parting, however, I may observe that the lower Appellate Court while framing the issues had also not taken into consideration the pleadings of the parties viz. the contents of the application for re-admission/restoration and the reply thereto, for example the assertion in para. 7 of the application that the respondents practiced fraud on the Court and the petitioner in obtaining the order of dismissal of the appeal as withdrawn should have been converted into an issue for determination. The most important issue which invariably arises in the controversies of the nature as involved in the present case is: "Whether there are sufficient grounds for re-admission/restoration of the appeal?"
18. In view of the foregoing discussion, allowing this revision I set aside the impugned judgment of the lower Appellate Court dated 15-5-197,3. However, in the interest of justice and for effectual and complete adjudication of the controversy involved I remit the case back to the lower Appellate Court for framing issues keeping in view the pleadings of the parties and my above observations and decide the application of the petitioner for re-admission/restoration of the appeal afresh in accordance with law.
' The parties are, however, left to bear their own costs.