1. Applicant Rana Abdul Ghafoor has called in question the judgment and decree passed by Ist Additional Sessions Judge, Sukur, in Civil Miscellaneous Appeal No. 26 of 1984, maintaining order, dated 24-5-1984 passed by the Senior Civil Judge Ghotki in F.C. Suit No.382 of 1978.
2. Said suit was filed by the applicant against the respondents for declaration and permanent injunction.
3. Case of the applicant was that the suit property measuring 128 acres of Plot No. 6 in Deh Dhandh Mahrari Taluka Pano Akil, District Sukur, was purchased and developed by him and he continued to be in possession of the same. The respondents 4 and 5 had filed a Suit No. 82 of 1971 in a Civil Court at Sukur, claiming an amount of Rs. 37,165.50 paisas from the applicant. Said suit ended into a compromise, which has been challenged by the applicant to be fraudulent. The compromise was challenged in a Suit No. 382 of 1978 to be nullity in the eye of law and not binding on the applicant.
4. In the alternative applicant sought declaration that the respondents were not entitled to partition of the land in question or to dispossess him from there. The applicant also sought injunction against the respondents restraining them from alienating or partitioning the suit land or dispossessing the applicant therefrom.
5. Since Suit No.82 of 1971 was decreed, respondents 4 and 5 filed Execution Application No. l of 1977 against which objections were filed by the applicant and said application is still pending. Applicant alleged in Suit No. 382 of 1978 that since the respondents 4 and 5 could not get relief from the execution Court they had moved the respondent No.3 for partition of the disputed property.
6. Respondent No.3 sent notice, dated 11-5-1978 to the applicant that the disputed land was to be partitioned on 16-5-1978. Respondent No.3 was informed by the applicant that the matter was sub judice and the partition could not take place. In view of such notice the applicant filed Suit No.382 of 1978. Said suit was contested by the respondents 4 and 5 who filed written statement. Case of the respondents 4 and 5 was that t he disputed land was granted to them and to the applicant subject to payment of instalments. That the applicant defaulted in contributing towards the instalments and as such the grant was revoked. Respondents 4 and 5 took stand that during pendency of Civil Suit No. 82 of 1971 the parties referred their disputes for arbitration and that the arbitrator gave award with consent of the parties and on the basis of such award the applicant and respondents 4 and 5 filed a compromise application under Order 23, rule 3 of C.P.C. And on the basis of such compromise application a consent decree was passed on 17-4-1976. It was added that subsequently on the basis of consent decree the parties privately partitioned the suit land and as a result of the partition respondents 4 and 5 were given separate possession of 64 acres of the suit land. Respondents 4 and 5 further stated in their written statement that the compromise decree passed in Suit No. 82 of 1971 was legal and valid in the eye of law and binding on the parties.
7. It was admitted that the respondents 4 and 5 moved respondent No.3 for making official partition of the suit land as per the compromise decree passed in Suit No. 82 of 1971 and that the notices were ordered to be issued to the applicant who wanted to extract money from them. Respondents 4 and 5 further pleaded in their written statement that the applicant was estopped from challenging the consent decree which could not be called in question in a civil suit and that the civil suit filed by the applicant was barred by sections 42 and 56 of the Specific Relief Act. Valuation and mainsainability of the suit was also challenged and so also jurisdiction of the trial Court.
8. During pendency of Suit No. 382 of 1978 the applicant moved an application under Order 23, rule 3 of C.P.C. With prayer to pass decree against the respondents 4 and 5 in terms of the agreement and award of compromise accepted by both the contesting parties. In said application the terms of the compromise in question were re-produced. Under an order, dated 24-5-1984 the Senior Civil Judge, Ghotki dismissed application of the applicant after taking view that the compromise application was made not by the parties but by the applicant alone, and that the respondents Nos.
9. 4 and 5 had denied contents of the compromise application and as such the compromise in question cannot be recorded by the Court.
10. Said order, dated 24-5-1984 was challenged by the applicant in C.MA. No. 26 of 1984, which was dismissed by the 1st Additional District Judge, Sukur, on the grounds that the application under Order 23, Rule 3 of C.P.C. Was signed by Advocate for the applicant and not by the applicant and it was not signed by the respondents 4 and 5 and that moving of the compromise application by counsel for the applicant was not a legal course and that the respondents 4 and 5 had denied contents of the compromise application: After taking such view, the appellate Court agreed with the trial Court that it was not necessary to hold an enquiry whether the respondents 4 and 5 had entered into the compromise with the applicant. Hence this Revision Application.
11. Mr. Lachmandas, learned counsel for the applicant argued that a compromise application cannot be rejected on the ground that it was not signed by the parties. It was further argued that the applicant and the respondents 4 and 5 had referred their disputes for arbitration to Molvi Haji Ghulam Rasool and that Molvi Haji Ghulam Rasool had decided the dispute between the parties and that joint affidavits by applicant Rana Abdul Ghafoor and Abdul Razak, General Attorney of the respondents 4 and 5 constituted an agreement along with an application moved jointly by the parties on 30-1-1983 for adjournment of Suit No. 382/78. Learned counsel for the applicant further argued that in the circumstances it was incumbent upon the trial Court to investigate into the matter for arriving at a conclusion whether compromise had taken place between the parties and that for that purpose evidence of the parties should have been recorded. In this respect learned counsel referred to the word "proved" appearing in Order 23, rule 3 of C.P.C. In support learned counsel cited the cases of:
(i) Mirza Iqrar Beg v. M.V. Hannan, PLD 1979 Kar. 620; (ii) Syed Abdul Baqi v. Syed, Nisar Ahmed Shah etc. NLR 1981 UC 642; (iii) Col. Rtd. Muhammad Nawaz v. Member, Board of Revenue (Colonies), Punjab 1989 M LD 3480; (iv) M/s. S. Muhammad Ilyas & Sons Ltd. v. Abu Ahmed Khan and others 1981 CLC 1257; (v) Ghulam Qadir v. Fazal Din and others, 1971 SCM R 537.
12. None appeared from the respondents to argue the case, except that Mumtaz Ali Shaikh, Head Munshi appeared for official respondents 2 and 3.
13. Order 23, rule 3 of C.P.C. Contains provisions governing compromise of a civil suit. Rule 3 of Order 23 of C.P.C. Reads as below: "3. Compromise of suit.-- Where 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 the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suit.
14. Perusal of the above provisions would show that the Court shall order an agreement, a compromise or a satisfaction to be recorded and shall pass a decree in accordance therewith so far as it relates to the suit, on being satisfied of either of the two situations: namely (1) that the suit has been adjusted wholly or in part by any lawful agreement or compromise or (ii) that the defendant has satisfied the plaintiff in respect of the whole or any part of the subject; matter of the suit. It is within power of the Court to decide whether an agreement or a compromise, pleaded by a party and contested by the other party, has been arrived at or not. If the Court is not possessed of the power to decide whether an agreement or a compromise pleaded by a party, has been reached or not, it will enable any dishonest litigant to get away from an agreement or a compromise reached by him freely and lawfully, merely by pleading that he had not done so, as held in the case of Mirza Iqrar Beg v. M.V. Harman (PLD 1979 Kar. 620). In the case of Syed Abdul Baqi v. Syed Nisar Ahmed Shah etc. NLR 1981 UC 642 the view taken was, that whenever A an application is made alleging that a compromise had been made between the parties, the Court must satisfy itself as to its existence or satisfaction as the case may be. An application made to the trial Court that the parties have entered into a compromise in writing cannot be rejected on the ground that the same is contested by the plaintiff, without giving an opportunity to the party moving the compromise application to prove the compromise. For acceptance of an application under Order 23, Rule 3 of C.P.C., it is not necessary that both the contesting parties should necessarily acknowledge the compromise to have taken place between them. The Court can be satisfied by the evidence of one of the parties that a particular suit has been adjusted by any lawful agreement or compromise, even if the other side contests this. In the case of Mirza Iqrar Beg PLD 1979 Kar. 620 it was held that the Court must find, whenever there is a dispute between the parties, as to, whether the agreement or the compromise has really been arrived at or not. It was also held that the whole purpose of rule 3, Order 23 of C.P.C. Will be lost if the Court is deprived of the power to decide whether the agreement or the compromise pleaded by a party has been reached or not. In the case of Col. Muhammad Nawaz 1989 M LD 3480 the view taken was that it is permissible to allow compromise in terms of Order 23, rule 3 of C.P.C. Where compromise is lawful, and that the compromise course advances public policy by shortening litigation and public interest is served through saving of expenses and public time. In the case of M/s. S. Muhammad Ilyas & Sons Ltd. 1981. CLC 1257 it was held that the question whether or not there had been a compromise between parties, had to be decided after a regular enquiry by taking evidence.
15. Rejection of such applications summarily was not proper, as further held. In the case of Ghulam Qadir 1971 SCM R 537 the draft compromise was not read over to the party in its entirety and fair copy was not signed by such party on the allegation that it had been altered and it was held that the Court should have refused to act on such compromise. This authority is not directly on the point.
16. Various authorities discussed above lend support to the view that a Court can pass a decree in accordance with a compromise if satisfied that such compromise had taken place between the parties, although one of the parties may have retracted from the compromise.
17. In the instant case, the trial Court as well as the appellate Court appeared to be under some misconception that a matter can be compromises under Order 23, rule 3 of C.P.C. Only when both the parties move application for compromise and not otherwise even if the parties had earlier entered into a C compromise. Such view militates against the letter and spirit of the provisions contained in Rule 3, Order 23 of C.P.C. In this- view of the matter, the impugned orders, dated 24-5- 1984 and 2-10-1989 are set aside and application of the applicant under Order 23, rule 3 of C.P.C. Is remanded to the Senior Civil Judge, Ghotki for deciding the same according to law. The Revision application stands disposed of accordingly with no order as to costs.