' SHAFIUR RAHMAN, J.--These two direct Appeals and the two Civil Petitions for Leave to Appeal arise out of the judgments of the High Court dated 2nd of March, 1982 whereby a matter concluded in the trial Court by consent was reopened on appeal and the two suits remanded to the trial Court for examining the question of limitation after getting the written statement amended and allowing at the same time an opportunity to the plaintiffs to move an application under section 14 of the Limitation Act, if they considered proper.
2. The circumstances in which the two appeals were filed before the High Court were that by two registered sale-deeds dated 1-10-1975, agricultural land was sold, in each case for a sum of Rs,1,37,500.The appellants as plaintiffs filed two suits on 30th of September, 1976 pre-empting the sales. They filed the suits before the Collector notwithstanding the fact that their claim was not on the basis of tenancy but on the basis of close relationship with the vendors. Noticing these features of the case, the Collector on 30th March, 1977 sent these two suits to the Civil Court and the Civil Court on 30th June, 1977 returned them to the Revenue Court pointing out that such was not the recognized method of sending suit from the Revenue Court to the Civil Courts. The Collector returned the plaints on 10-9-1977 for presentation before the Court having jurisdiction and the same day the suits were refiled in the Civil Court.The plaintiffs claimed a superior right to pre-empt at a price different from that disclosed in the registered sale deed (Rs,75,600 against Rs,1,37,500 shown in the registered deed). The defendants contested the superior right of pre-emption and the actual price at which the right was sought to be exercised. On the pleadings the following issues were framed:--
(1) Whether the plaintiff has superior right of pre-emption?
(2) Whether the ostensible sale-price of Rs,1,37,500 was fixed in good faith or actually paid by vendee?
(3) If issue No,2 is not proved what was the market value of the suit land at the time of sale?
(4) Relief.
' When the matter came up at the evidence stage, the parties sought an adjournment for effecting compromise which request was allowed and on the next date when they appeared, the plaintiffs admitted the sale price and the defendants admitted the superior right of pre-emption of the plaintiffs.The statements in both the suits were formally recorded and on the basis of such statements the judgment was pronounced and the claim decreed.Pursuant to the decree the plaintiffs deposited the amount in Court.
3. Two appeals were filed by the defendants challenging not the recording of the compromise but agitating that the suits were barred by time and the Court should have itself taken notice of it and rejected the plaints or dismissed the suits.
4. The learned Judges dealt with the controversy in the words that follow:- "In the instant case the plaintiffs conceded the Issue about price of the land paid, whereas the defendants admitted the pre-emptive right. There was however, no compromise on the point of limitation and omission to raise it before the trial Court did not indicate that it was waived.It was evident from the record that the suit was filed in the wrong Court and by the time it was instituted in the Civil Court, it had become barred by time (by more than ten months).The position being clear on the face of it, did not require evidence and in case it was not compromised, it remained undecided and in view of the provisions of section 3 of the Limitation Act (IX of 1908) the same could be agitated in appeal."
' The two cases were remanded to the trial Court in the following words:- "We are constrained to remand the case to the learned trial Court for the appellants to take in the written statements in specific words the objection to limitation and the respondents, if they wish may make an application under section 14 of the Limitation Act giving details of the circumstances leading them to prosecute in the wrong Court the suit in good faith. The parties shall be given an opportunity to lead evidence in support of their case and the learned trial Court shall then decide the question in accordance with law."
5. Mr. Muhammad Saeed Akhtar, Advocate the learned counsel for the appellants in Appeals and Respondents in Petitions contended that when no objection whatsoever had been taken to the limitation and a compromise had been arrived at between the parties, as appears from the proceedings, neither the appeals were competent in terms of section 96(3) of the C.P.C. Nor could the question of limitation be agitated to avoid the compromise. The learned counsel has referred in this context to a number of decisions of this Court particularly, A. R. Khan v. P. N. Bogha through Legal Heir (P. L D 1987' SC 107), Haji Muhammad Asghar v. Malik Shah Muhammad Awan and other (PLD 1986 SC 542), Abdul Wahab and others v. Habib Ali and others (PLD 1969 Lah. 365), Muhammad Hussain and others v. Walayat Shah and others (PLD 1959 Lah.526),Zahirul-Said Alvi v.
Lachhmi Narayan (AIR 1932 Privy Council 251) and Surendra Nath Mitra and others v. Tarubala Dasi AIR 1930 Privy Council 158).
6. He has also pointed out two decided cases which are identical in the sense that the effectiveness of compromise as against the provisions of the law of Limitation was considered and these are Ramchandra Deo Garu v. Chaitana Sahu and others (AIR 1920 PC 139 and Chandoo v.
Murlidhar and others (AIR 1926 Oudh. 311). He has also referred to 54 C J S para.314, Halsbury's Laws of England, Fourth Edition, Volume 37 para.382 and Volume 3 para.1118. It has also been contended that there was no appeal competent and the only course open for the plaintiffs if they wanted to challenge the compromise, was by review or by a suit. The amendment of the pleadings. Too, according to the learned counsel, could not be ordered by the Court without a request having been made by the concerned party. There was no such request made by anyone. He also -objected to the remand on the ground that the High Court taking note of such an objection should have dealt with it, itself.
7. In the civil petitions the only ground taken up is that instead of remand the High Court should have itself decided the question of limitation.
8. Raja Mahmood Akhtar, Advocate, the learned counsel for the respondents in appeals and petitioners in the civil petitions, has contended that there could be no waiver of the limitation and even if there was such a waiver, it could be revoked in appeal as was rightly done by the defendants and being a question of law could be decided and should have been decided forthwith by the appellate Court itself. The learned counsel has relied on the decisions of Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153), Abdul Ghani v. Ghulam Sarwar (PLD 1977 SC 102), Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624 and Ghulam Hussain and others v. Khan Muhammad and others (PLD 1954 Lah. 655) in support of his view.
9. At the hearing of the appeals and the petitions finding that Raja Mahmood .Akhtar, Advocate was not fully prepared to distinguish the two decisions, one of the Privy, Council Ramchandra Deo Garu and the other of this Court in A. R. Khan's case, we allowed him an opportunity at the close of the hearing to submit in writing, if he could in any manner attend to these two decisions. We allowed him a week for that purpose. The learned counsel without attending, to the question left for his attention, by a note dated 25-12-1988 expressed to be "Written arguments" has taken up four new grounds.The first ground taken is that the compromise stands vitiated as in the trial Court these were three minors in one suit and one minor in the other suit and permission of the Court as required under Order XXXII, Rule 7 of the Code of Civil Procedure had not been obtained from the Court. The second ground taken up is that the decision of the trial Court cannot be taken to be a decision on compromise at all, within the terms of Order XXIII, Rule 3 to bar an appeal.The third ground taken up is that the bar of limitation could not be waived nor could there be an estoppel against such an omission on the part of the defendants. The fourth ground given is that appeal being in continuation of the proceedings of the suit, the whole question got reopened and the ground on which the pre-emption claim had been made and accepted by the trial Court was no longer available to the plaintiffs.
10. These submissions show utter ignorance of the learned counsel of the practice and procedure of this Court and of the law on the subject. Without having raised any of these grounds at any earlier stage, without having obtained permission of this Court to raise them, he could not introduce these grounds at such a stage and in this manner. Rule 5 of Order XIX, of the Supreme Court Rules provides "The appellant shall not, without the leave of the Court, rely at the hearing on any ground not specified in his petition and the concise statement."
11. Not only the learned counsel has remained satisfied with the submission so made, two applications have been filed on 31st of December, 1988 by the Advocate-on-Record on behalf of respondent No,2 Muhammad Humayun Shall (in CA No,20/82) and respondent No,6 Asmar Shah (in CA. No,21/82), stating that they attained majority while the appeals were pending in the High Court, having been born in the year 1964. The brother of Humayun Shah and mother of Asmar Shah through whom they were sued had acted with gross negligence as guardians ad litem in the trial Court by not taking an objection that the suits were barred. He wanted that a rehearing in all the matters on that question should take place.
12. It is made clear that none of the grounds which have been taken up now and are outside grounds agitated before the High Court or by Petitions or Memo of Appeals in this Court, will help for the purpose of reopening the case and the matter in appeal shall be kept confined to the specific questions raised in the appeals and the petitions.
13. The first question which requires decision is whether the judgment in the trial Court was by consent so as to bar an appeal. Section 96 of the Code of Civil Procedure prescribes that no appeal shall lie from a decree passed by the Court with consent of the parties.The order-sheet already referred to shows that the parties had prayed for adjournment in order to effect a compromise, made a statement conceding to the claim of the other and it was as a result of their consent that the judgment was given and the decree passed. Even now it is not the case of any of the parties that such consent was not in fact given. What is contended is that it should not have been given. The learned counsel has in his ti Written Arguments pointed out that as in the case of (Moulvi) Zahirulsaid Alvi v. R. S. Seth Lachhmi Naryan (AIR 1931 Privy Council 107) the consent of the parties should have appeared on the face of the decree.Lf the record ex facie shows that the decree had been passed with the consent of the parties sufficient and substantial compliance with the requirement of law has to be assumed particularly so where even in appeal before us the fact of consent and compromise is not controverted.
14. In the case of Ramchandra Deo Garu the Privy Council was faced with an identical situation. A suit for time-barred items in an account was allowed to proceed as the defendant did not desire to benefit by the lapse of time. In appeal before the Privy Council the following observations were made:- "In truth the original judgment was a judgment by consent and it could only have been by consent that any judgment for the plaintiffs could have been obtained at all, for, as the learned Subordinate Judge said, the plaintiffs only got any decree owing verily to the defendants' charity. If it were regarded as a consent judgment it then became necessary once more to examine into the condition associated with the Limitation Act and it would have followed that the plaintiffs action would have been dismissed with costs. The truth is that the real substance of the appeals was the question of the fraudulent and fabricated settled account, in which the High Court entirely agreed with the Subordinate Judge and it is possible that their attention having been diverted to that main issue, they overlooked what was the true nature and character of the judgment of the Subordinate Judge."
15. The learned counsel for the respondents in Appeals has mainly relied upon the decision in Hakim Muhammad Buta and another but a reference to that decision shows that what has been recognized as an exception in that case applies to the facts of these appeals. The exact observation is contained in para.5 of that judgment in the words that follow:- 'However in exceptional cases, a defendant has been held to be debarred from raising the plea of limitation on the general principle of estoppel arising from his conduct."
The compromise, its sanctity and efficiency in putting a stop to further litigation was considered by this Court in the case of A.R. Khan. In this case but for the compromise that was reached between the parties, the plaintiff would not have been prompted to deposit the amount asked for by the respondents as price of the land. Having thus entered into a compromise and prompted the appellant to deposit the amount the respondents could not challenge it on the ground that the suit was barred by limitation.
16. There is much force in the contention that if it was a pure question of law then the learned Judges in the High Court should not have remanded the case to the trial Court with a permission to defendant to take up ground of limitation and to permit the appellants to move an application under section 14 of the Limitation Act seeking extension in time. The fact that the High Court did so indicates that there was a question of mixed law and fact to be looked into and without determining such a question a decision was not possible. Once a question C of a limitation involves determination of fact as well as of law, abandonment could not be undone by taking up the plea in the appellate Court on the ground that it is a question of law and not a mixed question of law and fact. This question however, is academic in these appeals because our finding is that there was a consent decree in the trial Court, that appeals were not competent in the High Court and that the respondents were estopped from agitating the question of limitation.
17. We would allow the two appeals, set aside the judgment of the High Court and dismiss their first appeals as incompetent with costs. In view of such a decision, the leave to appeal shall stand refused in the two petitions filed by the defendants. The grounds urged by the defendants in their written arguments or in the applications are not being considered because they have not been raised earlier in any of the documents presented in this Court or in the High Court.