MAMOON KAZI, J.- The respondents, by this application, which has been filed under section 151, Order XLVII Rule 1 and section 12(2) of the Code of Civil Procedure, seek review of the judgment, dated 20.8.1985, passed by this Court. The said judgment, which was passed with consent of the learned counsel for the parties by a Division Bench of this Court of which one of us (Mamoon Kazi, J.) was one of the members, reflected the compromise then proposed by the learned counsel for the parties. The prayer made in this application now is that the said compromise be declared as not binding on the respondents. The main ground urged in support thereof is that, Mr. Hassan Akbar, who was at the relevant time Assistant Advocate. General, Sindh and was appearing for respondent No.1 has not been authorised by the said respondent to enter into a compromise.
2. It may be pointed out that two identical constitutional petitions had been filed by Mobile Eye Service of Pakistan, the petitioner herein, namely, C.P.No.D-965/81 and C.P.No.D-240/82, calling in question the order dated 8.10.1981 passed by the Director Social Welfare and Registration Authority.
Government of Sindh, suspending the executive committee of the petitioners under section 9 of the Voluntary Social Welfare Agencies (Registration and Control) Ordinance, 1961. Earlier, a show cause notice was served upon the petitioners, office-bearers alleging that, they had violated the provisions of the registered constitution of .The petitioners and were responsible for many irregularities committed in respect of funds thereof and maladministration in the conduct of its affairs. Details, in regard to the various irregularities allegedly committed by the said office-bearers have been provided in the show cause notice, which was filed alongwith the petitions as Annexure 'A' but it is not necessary for us to enter into factual controversies involved in the case as nothing will turn thereon. Suffice it to say that when the two petitions came up for hearing on the 20th August 1985, due to non-availability of Mr. Ibrahim Memon on that date, the then Additional Advocate General Sindh, Mr. Hassan Akbar, Assistant Advocate General Sindh appeared on behalf of respondent No.1, who being unaware of the background to the case, consented to a compromise order which was then dictated in the Court in presence of the learned counsel. The main terms of the compromise order, were that, fresh elections of the governing body of the petitioners were to be held within six weeks from the date of the said order and no person other than the persons who were members of the said agency on the date of the passing of the order of suspension was to be entitled to vote at the said elections. The elections were to be held through and under the supervision of the Member of the inspection team of this Court.
3. Mr. Khalid Anwar, learned counsel now appearing on behalf of the respondents, has pointed out that during the pendency of the said cases the petitioners, in fact, made a proposal for a compromise which envisaged holding of fresh elections, but the proposal was, rejected by the Government and instructions were issued to the learned Additional Advocate General Sindh to ensure that no compromise was effected on the basis of the said proposal. An alternate draft was proposed by the Government but the same was not acceptable to the petitioners, and consequently, the compromise talks had already failed.
4. Mr. Hassan Akbar, to whom notice in respect of the present application was sent, filed an affidavit in the Court stating that he had given his consent only to the extent that fresh elections to the executive committee may be held, but the Conditions laid down in paragraph No.3 of the judgment, viz., that only those members would be permitted to vote who were the members of the Agency on the date of passing of the order of suspension, was without his consent.
5. The main question now requiring determination in the present case is, whether a compromise order once passed by the Court with the consent of the parties' counsel, can be reviewed on the ground that the counsel appearing for case of the parties had not been vested with authority by such party to enter into a compromise on its behalf. Secition 114 of C.P.C, which enumerates general powers of the Court to review its orders is subject to the provisions of Order XLVII C.P.C. Rule 1 of Order XLVII enumerates the grounds on which review can be sought by a party considering himself aggrieved by a decree or order or decision of the Court. According to the said rule, review can be sought on discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the party or could not be produced by it at the time when the decree was passed or the order made. Review can also be sought on account of some mistake or error apparent on the fact of the record or for any other sufficient reason. We would like to point out that, none of the grounds enumerated in rule 1 of Order XLVII C.P.C., can be found to exist in the present case. Mere failure on the part of the counsel to disclose that he holds no authority from his client to enter into a compromise on his behalf, can hardly provide a ground for review of a consent order based on such compromise. In such a case, there would neither be a mistake or error apparent on the face of the record nor would there be discovery of any new material calling for review of the order. The other provision invoked by the applicant is section 12(2) of C.P.C., which has been newly added thereto by Ordinance X of 1980. Under the said provisions the validity of a judgment, decree of order on the plea of fraud or misrepresentation or want of jurisdiction can be challenged by a person aggrieved by such judgment, decree or order. "Fraud" has been defined by Ballentine's Law Dictionary, Third Edition, at page 496 to mean, deceit, deception, artifice, or trickery operating prejudicially on the rights of another, and so intended, by inducing him to part with property or surrender some legal right. Anything calculated to deceive another to his prejudice and accomplishing the purpose, whether it be an act, a word, silence, the suppression of the truth or other device contrary to plain rules of common honesty".
"Misrepresentation" has also been defined by the same dictionary at page 807 to mean "the statement of an untruth. A misstatement of fact, which, if accepted, leads the mind to an apprehension of a condition other and different from that which exists." As it would appear from the above definitions, the two words are more or less synonymous. In this regard it may be pointed out that the only allegation made in the present application is that, Mr. Hassan Akbar had no authority from respondent No.1 to enter into the said compromise on her behalf. But, there is nothing in the application even to remotely suggest that Mr. Hassan Akbar, while giving his consent, was motivated by any consideration of fraud, or that he had colluded in any manner with the petitioners to give his consent to the said compromise. There is also nothing to point out that any misrepresentation was made by Mr. Hassan Akbar, notwithstanding the fact that he had no authority to enter into a compromise on behalf of respondent No.1,, since Mr. Hassan Akbar's authority to enter into a compromise on behalf of his client was not questioned at the relevant time. Consequently, in our opinion reference to the provisions of Section 12(2) C.P.C, is misconceived and such provisions are not attracted to the facts of the present case. Section ISI C.P.C, which is the third section invoked by the respondents in the present application refers to the inherent powers of the Court to make such order as may be necessary for meeting the ends of justice or to prevent abuse of the process of the Court. Such powers can be invoked by the Court whenever circumstances arise for which no express remedy can be found in the Civil Procedure Code. It may further be pointed out that section ISI C.P.C., does not confer any new power on the Courts but it merely saves their inherent powers to pass appropriate orders to meet the ends of justice or to prevent abuse of the process of the Court. However, the Courts have to act within the ambit of their jurisdiction. No doubt, in the case of a compromise, the order may be recalled by the Court under section ISI C.P.C, in the same proceedings on the ground of fraud, but again, fraud must be clearly established, which does not appear to be the case in the present case, as pointed out earlier.
6. Although, Mr. Khalid Anwar, has not cited any case law on the point, but Mr. Khalid Ishaque, learned counsel for the petitioners has referred to a number of cases on the point to which we now propose to refer. In Mumtaz Ali v. Haji Muhammad Ramzan (1980 C.L.C. 331) a consent decree passed on the basis of a compromise was challenged in an appeal before the High Court. It was observed that even if it was assumed that fraud was practised on the appellants, the appeal would nevertheless be incompetent since the order impugned was passed on the basis of a compromise and was a consent order. Similarly, in Abdul Wahab v. Habib Ali (P.L.D. 1969 Lah. 365), the Court declined to enterain a Letters Patent Appeal against a consent order passed in a writ petition. It was observed in this case that: "Once a mode (Procedure) is adopted by the High Court on the request of the parties, the decision given in pursuance of that mode should be given effect to. A necessary corollary of this rule will be that the same parties are estopped from subsequently challenging the mode of decision in an appeal". The third case cited by Mr. Khalid M. Ishaque, the facts of which appear to be somewhat identical with those of the present case, is reported as Muhammad Bibi v. Abdul Ghani (P.L.D. 1973 Kr. 444). In this case, a consent order embodying a compromise between the parties was attacked on the ground of fraud allegedly played in the Court. It was observed in this case that it is only in case of fraud played upon the Court that an order may be recalled in the same proceedings in which it was made, but, where a consent order or a decree is allowed to have been obtained by fraud played upon the party, neither section 151 C.P.C, nor Order XLVII Rule 1 C.P.C., could be invoked for setting aside such a decree. Reference was made in this case to a number of precedents (Cited on the point, including those from the Indian jurisdiction and in this regard we would particularly like to mention two cases decided by the Bombay High Court reported as Basangowda Hanmantgowda Patil v. Churchigirigowda
7. The consensus of the cases referred to in this judgment, therefore, clearly is that once a case is disposed of by a consent order, then unless there are clear indications of fraud or misrepresentation, the same may not be recalled by the Court. In the present case as we have pointed out earlier, no doubt, Mr. Hassan Akbar learned Assistant Advocate General who then represented respondent No.1 had no authority to enter into any compromise on behalf of the said respondent with the petitioners in the case, but nevertheless there is no indication of any fraud being practised either upon the Court or the said respondent nor there appears to be any misrepresentation made by Mr. Hassan Akbar. In that, Mr. Khalid Anwar gave his no objection in respect of withdrawal of the notice which had earlier been issued to Mr. Hassan Akbar with the result that, the notice was discharged by the Order of this Court, dated 20.10.91. As to the stand taken by Mr. Hassan Akbar, that he had not given his consent to the entire order dictated by the then learned Chief Justice who was the other member of the Division Bench which passed the consent order, we would like to point out that the same cannot be accepted because the order was dictated in the Court in presence of the parties' counsel. If what Mr. Hassan Akbar has stated in his affidavit now is true, we are certain, he would have pointed out the same to the Court there and then. In any case, we find that when an' advocate enters into a compromise on behalf of a party without being specifically authorised in this behalf by such party, the matter under the circumstances, would purely be between the advocate and the party and no compromise, in our opinion, can be set aside merely on the ground that the advocate had no authority to compromise.
8. In the result, we find no merit in the two applications, which are identical in terms, and the same are therefore, dismissed.