' SAJJAD ALI SHAH, J.---This appeal with leave is directed against judgment and decree dated 5-12- 1989 of the Lahore High Court at Lahore, whereby R.S.A. No,279 of 1975 is dismissed and R.S.A. No, 213 of 1975 filed by Azim Khan is accepted and decree for possession by pre-emption of the suit land is set aside and suit is dismissed as withdrawn with no order as to costs.
2. Briefly stated the relevant facts in the background are that land measuring 59 Kanals and 13 Marlas in revenue estate of Village Said Baloch, Tehsil Mailsi, District Multan (now District Vehari) was purchased by Azim Khan respondent No,1 herein, vide registered sale-deed dated 10-1-1964 for consideration of Rs,12,000. Sale was sought to be pre-empted by Nooray Khan (predecessor-in- interest of appellants herein) and Saddoo Khan (predecessorin-interest of respondents Nos.2 to 13 herein) by means of a joint suit claiming superior right of pre-emption for being collaterals of the vendors. During the trial proceedings, Saddoo Khan admitted claim of the vendee/defendant in the suit and he was transposed in the suit as defendant on the request of Nooray Khan. Saddoo Khan challenged his transposition in Civil Revision before the Lahore High Court but without success. Trial Court dismissed suit of Nooray Khan as time-barred vide judgment and decree dated 7-1-1974.
Against that decision, two appeals were filed, one by Nooray Khan and the other by successors-in- interest of Saddoo Khan, who had died during pendency of the suit. First appellate Court accepted appeal of Nooray Khan and accordingly his suit was decreed. Appeal filed by successors-in- interest of Saddoo Khan was dismissed. In the High Court, R.S.A. No,213 of 1975 was filed by Azim Khan and R.S.A. No,279 of 1975 was filed by successors-in-interest of Saddoo Khan.
3. During pendency of these appeals in the High Court, in R.SA. No,213 of 1975 C.M. No,1909/C of 1987 was filed by Azim Khan under section 151 read with Order XXIII, Rule 1, C.P.C. Claiming that parties had entered into compromise agreement on 4-7-1987, hence statements of Umer Bakhsh and others (appellants herein) be recorded and they may be allowed to withdraw the suit. This application was opposed by appellants herein on the ground that agreement was subject to pre- condition which was not fulfilled and that precondition was that Azim Khan (respondent No,1 herein) would arrange sale of 8 acres of land owned by one Ghulam Mastan Khan in their favour. In the High Court learned Judge in chamber recorded statements of appellants herein and their counsel and also of respondent No,1 on 3-12-1989 and accepted R.SA. No,213 of 1975 filed by respondent No,1 Azim Khan and dismissed the suit of the appellants herein as having been withdrawn vide judgment and decree dated 5-12-1989. R.SA. No, 279 of 1975 filed by successors-in- interest of Saddoo Khan was dismissed as no decree was passed in their favour on 31-7-1986.
4. In this Court leave has been granted for examination of following points of law:--
(1) Whether the proved facts established a concluded compromise?
(2) Whether the absence of consideration for it did not intrinsically show it to be not complete?
(3) Whether the parties could be held bound by it when they were not prepared to certify it before the Court?
5. Copy of the compromise in writing between the parties dated 4-7-1987 is in the paper book at page 91, perusal of which shows that compromise had materialised between the parties due to efforts of respectable persons for the following:
(a) That party of the second part (Khuda Bux and others) have given up their right of pre-emption and they have no objection if appeal of Azim Khan is allowed.
(b) Party of the first part Azim Khan would file application of compromise in the High Court and party of the second part would give statements according to compromise.
(c) Party of the second part would be entitled to withdraw decretal amount or whatever money is deposited by them in the Court.
(d) Between the parties there is no dispute about the costs.
' By this agreement in writing Azim Khan would file application alongwith affidavits of the party of the second part in the High Court and on that date of hearing party of the second part would produce their advocate in the Court.
6. On 29-7-1987 application (C.M. No,1909 of 1987) under section 151 read with Order XXIII, Rule 1, C.P.C. Was filed in the High Court by Azim Khan alongwith three affidavits of party of the second part (Umer Bakhsh and two others) sworn on 4-7-1987 which is same date on which compromise in writing was drawn up. It is mentioned in paragraph 3 of the application that compromise is arrived at between the parties and party of the second part (appellants herein) are ready to concede the appeal and withdraw their pre-emption suit against Azim Khan and further they are ready to give statement that names of legal representatives of Saddoo Khan be deleted in view of judgment in C.R. No,172 of 1968 of High Court delivered on 24-44972. Prayer clause of the application (at page 90 of the paper book) reads as under:-- "In view of above circumstances, it is therefore, humbly prayed that compromise statements of plaintiffs/respondents may kindly be recorded and they may kindly be allowed to withdraw their suit and money deposited by them.
' Any other necessary order in respect of appeal may kindly also be passed."
7. On 3-12-1989 reply was filed by Umer Bakhsh and others against C.M. No,1909 of 1987 in which stand has been taken that compromise and affidavits could not be acted upon as the same are without consideration. Compromise was drawn up on verbal assurance of Azim Khan that he would get 8 acres of land from Ghulam Mastan Khan for them but this condition was not fulfilled. It is further stated that compromise was conditional and incomplete and had it been completed, it would have been acted upon immediately and several adjournments would not have been granted. Compromise did not mention consideration and it was settled between the parties that Azim Khan would get 8 acres of land from Ghulam Mastan Khan for them which was not done and, therefore, compromise was abandoned and prayer was made that C.M. No,1909 of 1987 be dismissed. Alongwith reply three affidavits of Umer Bakhsh and others were filed mentioning the fact that compromise was conditional and condition was not fulfilled.
8. In this Court several order sheets from the record of the High Court have been produced which are included in the paper book. One thing is very conspicuous that C.M. No,1909 of 1987 was filed on 29-7-1987 and order was passed by the High Court on it on 5-12-1989 and, therefore, this application was pending final orders for about 2 years and 5 months. Order sheet dated 28-9-1987 at page 40 of the paper book mentions the fact that application for compromise was on the file and still learned counsel for the parties requested that the case may be adjourned to 5-10-1987.
After that consent dates by the parties were being taken, till on 28-10-1989 (page 52 of paper book) the Court directed respondents (appellants before us) to submit reply to C.M. No,1909 of 1987 within two weeks. Since compromise in writing was. Drafted by Ch. Muhammad Yaqoob Kung, Advocate of Khuda Bakhsh and others, his statement was also recorded. On 3-12-1989 joint statement of Muhammad Ashiq, Khuda Bakhsh and Umer Bakhsh was recorded in which they have reiterated that compromise was conditional and Azim Khan had promised to purchase for them 8 acres of land from Ghulam Mastan Khan which he failed to do and, therefore, compromise could not materialise. On the same day statement of Ch. Muhammad Yaqoob Kung, Advocate was also recorded in which he stated that he had drafted the compromise which was admitted to be correct by both parties and in his presence money was not passed nor Azim Khan undertook to purchase 8 acres of land from Mastan Khan for Umer Bakhsh and others. On the third day of writing of compromise Umer Bakhsh and others came to him and informed him that they will not give statements according to compromise as agreement was not fulfilled. Statement of Azim Khan was also recorded in which he stated that written compromise Exh. C-1 was thumb-marked by Umer Bakhsh and others after contents were read out to them and he had paid Rs,1 lac in cash after which document was thumb-marked by them. He further denied that he had promised to purcahse 8 acres of land for them from Mastan Khan.
9. While dealing with compromise deed Exh.C-1 in the light of evidence of the parties recorded, High Court has come to the conclusion that the case is covered by Order XXIII, Rule 3, C.P.C. And suit of Umer Bakhsh and others was adjusted wholly by lawful compromise relying upon statement of Ch. Muhammad Yaqoob Kung, Advocate.
10. We regret that we do not agree with this finding for the reason firstly that document Exh.C-1 is not stamped and is not a contract as element of consideration is conspicuously missing in it. It is, therefore, not a contract, grant or other disposition of property reduced to the form of a document strictly according to law excluding evidence of oral agreement as contemplated under section 92 of the Evidence Act and now Article 103 of Qanun-eShahadat. Proviso 2 of Article 103 of Qanun-e- Shahadat envisages that if document is silent with regard to any matter about which oral agreement exists, then the same is allowed to be produced provided it is not inconsistent with the document. Umer Bakhsh and others are decree-holders and were respondents before the High Court and they could not possibly be expected to agree to withdrawal of suit without any consideration. Order XXIII, Rule 3, C.P.C. Requires that the Court shall order compromise of suit to be recorded when it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise or where the defendant satisfies the plaintiff in respect of whole or any part of the subject-matter of the suit. In Exh. C-1 admittedly there is no mention about consideration. Both parties have different versions. According to Umer Bakhsh and others, 8 acres of land was to be purchased for which there was oral agreement and according to Azim Khan the other party had accepted Rs,1 lac. Ch. Muhammad Yaqoob Kung, Advocate, who wrote the compromise stated that in his presence no money was passed and no undertaking was given by Azim Khan. He has not supported version of any party with regard to what transpired apart from what was reduced in writing. In cross-examination he admitted that on the third day Umer Bakhsh and others came to him and informed him that compromise had failed.
11. One other important factor is that this compromise Exh.C-1 was not complete because it is sepcifically mentioned therein that it had to be produced in the Court and party of the second part (Umer Bakhsh and others) had to give statements in the Court and only after that it would be considered as acted upon because in the result Umer Bakhsh and others had to agree that appeal by Azim Khan be allowed and they be allowed to withdraw their suit. It, therefore, manifestly follows that the compromise would be completed only when it is accepted by the Court and orders are passed by the Court as desired by the parties. Court would consider the document to be compromise when both parties signing it agree and reiterate the contents before the Court. If before the Court one party to the document resiles from it, then the document can be called anything but an agreement or compromise.
12. In the case of Ghulam Qadir v Fazal Din and others (1971 SCM R 537) draft compromise was repudiated by a party on the grounds that it was not read over in its entirety and fair copy was not signed as it had been altered by the other party and it was held by this Court that the Court should have refused to act on such compromise under Order XXIII, Rule 3, C.P.C. As it was repudiated at the earliest opportunity. In the instant case as per statement of Ch. Muhammad Yaqoob Kung on the third day after compromise was reduced to writing Umer Bakhsh and others came and informed him that it was not to be acted upon and further order sheets of the recordvof High Court also show that after application was filed in the Court, adjournments were being sought with consent of the parties and fmal orders were passed on the application after more than two years. In the case of Muhammad Shafi and others v. Allah Dad Khan (PLD 1986 SC 519) scope of section 92 of the Evidence Act was examined and it was held that rule of evidence does not fetter powers of the Court to unveil real transaction where the validity of the document itself is challenged and to ascertain real nature of transaction. Reference can be made to the case of Haji Muhammad Iqbal v. Muhammad Abbas and others (1987 SCM R 1983) in which during pendency of election petition before the Tribunal parties came to compromise for fresh counting of votes. Later record containing ballot papers was found to be tampered with and notwithstanding Tribunal enforced compromise despite objections raised by the respondents in the petition. Decision of the Election Tribunal was set aside by the High Court holding that agreement was arrived at and acted upon under a common mistake of fact and Tribunal fell into a serious legal error in pronouncing judgment based on record which was tampered with and shorn of authenticity and remanded proceedings for trying election petition in accordance with law. This Court affirmed the view of the High Court and held that a judicial or quasi-judicial determination, to inspire confidence and to command respect must be based on record or material beyond suspicion and reproach and in consequence refused leave to appeal.
13. For facts and reasons stated above, we set aside judgment and decree of the High Court and allow this appeal and remand the case back to the High Court for decision on merits.