MUNIR A. SHEIKH, J.- The facts forming the background of this case as ascertained from the documents on the record shortly stated are that the land in dispute measuring 548 kanals 14 marlas against khata No.81 dated 26.6.1959 was allotted by the Settlement Department under the settlement laws to one Altaf Hussain on whose death mutation of inheritance was sanctioned in favour of Makhdoom Hussain and Iftikhar Hussain sons of Mushtaq Hussain as his heirs. Makhdoom Hussain above-mentioned sold the land to one Ghulam Muhammad son of Muhammad Din through sale deed registered on 31.7.1965 who further alienated it to one Nemat Ali son of Muhammad Bakhsh. This Nemat Ali transferred the land to one Ghulam Hassan Dogar and Nabi Ahmad Jat. The petitioners claims to have purchased the land from Ghulam Hassan son of Ali Muhammad through mutation No.16 sanctioned on 19.1.1971 for a consideration of Rs.15,000/- and since then they had been in its possession as owners. The aforesaid Altaf Hussain the original allottee was also allotted land against his claim in the four revenue estates of District Sheikhupura.
One Malik Noor Muhammad respondent No. 1 moved an application under Sections 10/11 of the Displaced Persons (Land Settlement) Act, 1958, on 30.5.1972 before Kh. Abdul Rashid, Additional Settlement Commissioner (Land) exercising the powers of Chief Settlement Commissioner for cancellation of allotment of original allottee who held that the land allotted to said Altaf Hussain in respect of land situated in Kakkar Gil and Narinjni would remain intact while the other allotments were ordered to be cancelled. The petitioners feeling aggrieved filed an appeal before the Settlement Commissioner (Lands) Punjab which was disposed of through order dated 6.10.1973 in which it was held that on verification the entitlement of the allottees had been reduced to 3146 P.I.
Units. Thus the allotment in excess of the said verified claim should be cancelled but the chronological order of allotment should be kept in view and only subsequent allotments over and above the due entitlement should be cancelled. According to the plaintiff as contended by his counsel this would save the allotment of the land in dispute purchased by the petitioners.
2. It is case of the petitioners that during the pendency of their said appeal filed against the order dated 30.5.1972 in which a stay order was issued in their favour, the land in dispute was proposed in the name of Zohra Fatima on 26.2.1973 and the same was confirmed on 11.3.1973 being land which became available in pursuance of order dated 30.5.1972. It is their case that these entries were forged, fabricated and ante-dated having been done through fraud and misrepresentation.
3. Malik Noor Muhammad defendant No. 1 filed Writ Petition N0.I6O6/R of 1976 in this Court alleging that he being tenant of the portion of the land in dispute was entitled to its transfer under the existing scheme, as such, the order of allotment in favour of Mst. Zohra Fatima was without lawful authority and the same may not be implemented. A compromise was affected and the writ petition was disposed of by this Court in terms of the compromise through order dated 20.4.1981.
The petitioners filed a petition for review of the said judgment which was dismissed with the observations that to establish the assertions made by the petitioners recording of evidence was necessary which was not permissible in Constitutional jurisdiction and the petitioners if so advised could seek their remedy available under the law. This was through order dated 17.5.1981 which was challenged in I.C.A, by the petitioners which was dismissed through order dated 30.5.1981. The petitioners took the matter to the Supreme Court by way of petition for Special Leave to Appeal which was also dismissed on 9.3.1982. The allotment from the name of Altaf Hussain the original allottee was cancelled by the Settlement authorities vide order dated 18.7.1984 which was obviously in pursuance of the order dated 30.5.1972 passed by the Additional Settlement Commissioner with powers of Chief Settlement Commissioner. The petitioners challenged the said order in the suit from which this revision petition has arisen in which it was also averred that the compromise between the parties in W.P. N0.I6O6/R of 1976 was affected by practising fraud and the true facts had been concealed. It was also averred that the said compromise was not binding on the petitioners on the grounds given in the plaint. The case of the petitioners was that the petitioners were bona i.e purchasers for value without notice. They also claimed ownership of the land by way of adverse possession. The genuineness of the allotment in favour of Zohra Fatima and the legality of the order dated 18.7.1984 passed by the Settlement authorities were also challenged.
4. The suit was contested. The defendants No. 1 to 9 filed written statement whereas defendants No. 3 to 14 filed separate written statement as also defendants No.16 and 17 by filing written statement separately. During the pendency of the suit an application was moved under Order 7 Rule 11 CPC through which a prayer was made that the plaint be rejected. This application was accepted by the learned trial Court through order dated 25.3.1990. It was held that the plaintiffs having failed up to the level of the Supreme Court as aforementioned and since fraud was alleged in obtaining the order on the basis of compromise from this Court in W.P. N0.I6O6/R of 1976, therefore, the suit of the petitioners was barred under Section 12(2) of the CPC as such the plaint was rejected. This order was assailed by the petitioners in appeal before the learned lower appellate Court which has been dismissed as withdrawn on 21.7.1990 on the statement of the learned counsel for the petitioners who withdrew the appeal to seek remedy in this Court which has been challenged in this revision petition.
5. I have given in detail the above-mentioned facts as pleaded in the plaint so as to understand the real controversy raised by the petitioners for ascertaining the correctness of the finding of the learned trial Court that the remedy of the petitioners was under Section 12(2) CPC and the suit was barred under the said section.
6. It is clear from the plaint that in substance fraud was alleged with regard to obtaining allotment of land by Zohra Fatima from the Settlement authorities during the pendency of appeal of the petitioners against the order dated 30.5.1972 and in pursuance of which Zohra Fatima claimed to have been allotted the land which became available after having been cancelled from the name of the original allottee Altaf Hussain. The assertion of the petitioners regarding order passed by this Court in W.P. N0.I6O6/R of 1976 on the basis of compromise substantially was that the petitioners being not party in the said writ petition and to the compromise, therefore, neither the compromise nor the order passed by this Court was binding on them" and it did not adversely affected their rights and order of the Additional Settlement commissioner passed on 6.10.1973 in their appeal against the order dated 30.5.1972 was holding the field according to which allotment of land in dispute in favour of Altaf Hussain which was subsequently purchased by the petitioners remained in-tact, as such, its cancellation through order dated 18.7.1984 on the motion of Manzoor Hussain defendant was illegal and mala i.e. The plea of fraud regarding proceedings in W.P. N0.16O6/R of 1976 was raised merely with reference to concealment of facts I from the High Court. Existence of order of Settlement Commissioner dated 6.10.1973 and nothing more. The petitioners also claimed to be bona i.e purchasers for value without notice of the land in dispute and they also claimed ownership by way of adverse possession. According to firmly settled law in order to determine whether the suit is barred under any law or not the averments in the plaint are only to be taken into consideration and assuming the same to be true it has to be seen whether the suit was barred under any law. Section 12(2) CPC is - attracted only where a judgment, decree or order of a Court is sought to be challenged on the ground of fraud, mis-representation and want of jurisdiction. The suit of the petitioners relating to averments that they were bona i.e purchasers for value without notice, owners of land by way of adverse possession, the compromise affected between the parties in W.P. N0.I6O6/R of 1976 and the order passed thereon was not binding on them they being not party to the same, that the order for allotment of land to Zohra Begum in pursuance of order dated 30.5.1972 was illegal having been superseded by another order passed by the higher authority dated 6.10.1973 and that the allotment in favour of Zohra Fatima was fabricated and forged one and that the subsequent order for cancellation of land in the name of original allottee dated 18.7.1984 passed by the Settlement authorities on the motion of Ch. Manzoor Hussain defendant was illegal do not any way fall within the purview of Section 12(2) CPC. This Court while dismissing the application of the petitioners seeking review of order passed in W.P. N0.I6O6/R of 1976 clearly observed that the allegations made by the petitioners required recording of evidence which was not permissible in Constitutional. The said order rejecting the application of the petitioners seeking review was upheld in I.C.A, as well as by the Supreme Court which would mean that the order of the learned Single Judge observing that the petitioners could seek remedy under the law was maintained which did not debar the petitioners from seeking remedy by filing the suit.
7. The appeal filed by the petitioners was sought to be withdrawn by his learned counsel on the assumption that the petitioners under the law could seek remedy only from this Court. The learned lower appellate Court dismissed the appeal as withdrawn through the impugned order dated 21.7.1990.
8. The petitioners have challenged the said order on the main ground that the opinion of the learned counsel on the point of law that the remedy of the petitioners was to approach this Court only and withdrawal of the appeal on the assumption was not binding on the petitioners.
9. The question for determination is whether the opinion of the learned counsel for the petitioners on a point of law i.e. That the remedy of the petitioners was to approach this court and withdrawal of the appeal on that assumption was binding on the petitioners and as such the impugned order for dismissal of appeal as withdrawn by the learned lower appellate Court was sustainable.
10. Learned counsel for the respondents on the strength of rule laid down in judgments reported as Messrs Arokey Ltd and another Vs. Munir Ahmad Mughal etc. (PLD 1982 S.C.204), Jhang Bahadur Vs. Muhammad Pervaiz (1979 CLC 337), Mian Ghulam Muhammad Vs. Maulvi Fazal Haq (1979 CLC 518) and Abdul Khaliq Vs. Khuda Bakhsh and others (1989 CLC 1316) argued that an Advocate appointed by a party in the suit had always the authority to affect comprehension the suit on behalf of the party engaging him and make statement accordingly for adjustment of suit or for withdrawal of the suit, therefore, the statement made by the petitioners learned counsel before the learned lower appellate Court for withdrawal of the appeal was binding on them and they could not turn around and challenge the ing the appeal as withdrawn.
Lt. It is no doubt correct that an Advocate engaged by a party is empowered to affect compromise on behalf of his client and make statement before the Court for adjustment of the suit. In my view the said rule is not attracted to the facts and circumstances of this case. On 21.7.1990 when the statement was made by the learned counsel for the petitioners for withdrawal of appeal the petitioners were not present in Court as is evident from the order of the said date because the petitioners' presence have not been recorded and it was only the presence of their learned counsel which has been mentioned. The statement made by their learned counsel been was not for withdrawal of the appeal simpliciter on the basis of a compromise or for the relinquishment or abandonment of their claim or the relief which they were seeking but it was a statement made on the basis of his opinion on a point of law that the remedy of the petitioners was to approach this Court. In these circumstances in my considered opinion where an Advocate engaged by a party to persue a particular remedy before a forum is of the opinion that under the law instead of the availability of the said remedy a different remedy was available to his client before a different forum, the right course for him to advise his client and it was for him to accept the said advise or instruct the learned counsel to persue the remedy already invoked. It is firmly settled law that any admission on a point of law much less admission based on erroneous opinion on a point of law does not bind the maker of the admission, nor any other person to whom the maker represents in a judicial proceedings before a Court of law. The matter can be viewed from another angle i.e. That if instead of withdrawing the appeal on the basis of his opinion on the law point the learned counsel had otherwise made concessional statement during the arguments that the remedy of the petitioners was to approach this Court under Section 12(2) CPC and the appeal had been dismissed on the basis of this concession on a law point, the same could very well be challenged before this Court on the ground that the concession was based on erroneous opinion on law point and as such the disposal of the appeal was not proper on the basis of such concessional statement. In this case instead of making admission on a law point during the arguments the learned counsel proceeded to make statement for the withdrawal of the appeal but the consequences are the same. If in the former case this could be interfered with on the ground that the concession made by the learned counsel on a law point was erroneous, this Court is not divested of the jurisdiction to interfere also in the latter case merely because the appeal was I withdrawn. The law looks to the substance and not to the form. I have already held that from the statement made in the plaint the suit does not appear to be barred by any law and Section 12(2)
CPC, therefore, it can safely be held that the withdrawal of the appeal by the learned counsel on the basis of erroneous admission on the law point that the remedy of the petitioners was to approach this Court under Section 12(2) CPC and dismissal of the appeal on that assumption is not sustainable. It is pertinent to note that the petitioners had allegedly purchased the land as far back as 19.1.1971 and their non-implead ment in any of the subsequent proceedings relating to the land in dispute including the writ petition was a matter which has to be looked into in order to determine whether orders passed in those proceedings would be binding on the petitioners which is one of the questions to be determined in the suit.
12. Even otherwise an admission on law point erroneously made, in ignorance of the rights of the person making it can be shown to be wrong, as such, it could be argued under the law that the disposal of the cases on the basis of such admission was not proper. Viewed from this angle also I am inclined to interfere in the matter as the petitioners cannot be rendered remedy less as his application made before this Court in the writ petition had already been disposed of with a direction to persue his remedy some where else.
13. Ch. Mushtaq Ahmad Khan, learned counsel for the respondents argued that the remedy of the petitioners was to approach the learned lower appellate Court for withdrawal of the said statement made by their learned counsel and this Court under Section 115 CPC cannot interfere in the impugned order having been passed on the statement of the learned counsel for the petitioners. I am afraid the argument has not impressed me. After having found that the order for dismissal of the appeal as withdrawn is not legal and proper, this Court is vested with jurisdiction to correct the error.
14. For the foregoing reasons the two Courts below failed to exercise jurisdiction vested in them under the law to try the suit on the erroneous assumption that the same was barred under Section 12(2) CPC, as such, the impugned orders are not sustainable. This revision petition is accepted. The impugned orders dated 25.3.1990 and 21.7.90 passed by the learned trial Court and the learned lower appellate Court are hereby set aside and the case is remanded to the learned trial Court to decide the suit in accordance with law. The parties arc left to bear their own costs.