' M. JAVED BUTTAR, J.---This judgment shall also dispose of R.A. No, 10 of 1994/BWP having arisen in F.A.O. No, 12/94/BWP, as it is connected matter between the parties.
2. The first appeal is directed against the judgment and decree dated 11-7-1994 of Civil Judge Ist Class, Ahmadpur East, whereby the suit of the appellant was dismissed for his failure to deposit the balance of alleged sale price as directed by this Court vide order dated 25-4-1994 in F.A.O. No, 12/94.
3. The facts in brief are that the appellant filed a suit for specific performance of oral agreement to sell dated 3rd of September, 1993. The main suit was accompanied by application for grant of temporary injunction. The Civil Judge Ist Class, Ahmedpur East vide his order, dated 14-2-1994, accepted the application subject to his depositing the remaining amount of Rs,6,20,000 in the Court within a period of seven days, i,e,, up to 20th February 1994. It was further ordered by the Trial Court that if the condition is not fulfilled within time, the application will be deemed to be dismissed. Through this temporary injunction the plaintiff's possession over the suit land was safeguarded. Being aggrieved of the conditional order of temporary injunction, the appellant instituted F.A.O. No,12/94 in this Court which was admitted to regular hearing on 7-3-1994. The appellant had also filed an application (C.M.No,1/94) for the grant of temporary injunction alongwith the said F.A.O. In which notice was issued for 25-4-1994 and when the abovesaid application for the grant of temporary injunction came up for hearing on this date, the main appeal itself was accepted and disposed of. The older passed by this Court (Muhammad Amir Malik, J.) on 25-4-1994 in F.A.O. No,12/94/BWP is reproduced below: "FAO & C.M.I/94.
' Learned counsel for the appellant is prepared to deposit the amount of Rs,6,20,000 till 25-6-1994 and offers that in case he failed to do so his suit may be ordered to be dismissed. This offer is acceptable to the learned counsel for the respondent.
2. Accordingly the appeal is accepted and setting aside the order of the learned lower Court, the appellant is allowed to deposit the amount of Rs,6,20,000 in the learned lower Court on or before 25-6-1994 and in case of his failure, his suit shall be deemed to have been dismissed.
3. Till then, the possession of the appellant shall not be disturbed. Disposed of."
4. After the disposal of the FAO the suit was fixed before the Trial Court for 27-6-1994 and on which date the plaintiff appeared in person and submitted challan for deposit of Rs,6,20,000 dated 25-6- 1994. However, the defendant's counsel pointed out that the High Court's order had not been complied with by the appellant and the challan receipt was a forged document. The Trial Court thereafter adjourned the suit for the statement of the plaintiff and for record of the Treasury Accountant. The statements of plaintiff, Treasury Accountant and Naib Nazir of the Civil Court were recorded on 7-7-1994 by the Trial Court. It transpired that the plaintiff had not deposited the amount of Rs,6,20,000 in the Bank and instead only an amount of Rs,1,20,000 was deposited and the challan receipt produced by the appellant/plaintiff was not a genuine document and, therefore, vide impugned judgment and decree, dated 11-7-1994, the learned Trial Court following the order, dated 25-4-1994, passed by the High Court in F.A.O. No,12/94 held that the plaintiff's suit is deemed to have been dismissed as he has failed to comply with the order of the High Court. The learned Trial Court also directed the local police to register criminal case regarding the preparation and production of the fake challan receipt, produced by the plaintiff. The Sub-Inspector, Police Station, Ahmedpur East, informed this Court on 1-12-1994 that report under section 173, Cr.P.C. Has been submitted and the criminal proceedings have been initiated against the accused including the appellant.
5. The appellant thereafter filed the present appeal on 18-7-1994 and then proceeded to file Review Application on 24-7-1994.
6. We have heard the learned counsel for the parties and have also gone through the record.
7. Learned counsel for the appellant has submitted:-- ' Firstly: That the appellant's counsel in F.A.O. No,12/94 had been engaged only to conduct the said F.A.O. Which was directed against the order passed by the Trial Court on the appellant's application for the grant of temporary injunction i,e, to say that he had been engaged only to challenge an interim order passed by the Trial Court and had not been engaged in the main suit and, therefore, he was vested with no authority to make any statement on behalf of the appellant in regard to the main suit and, therefore, his statement to the effect that if the deposit of the remaining amount of Rs,6,20,000 is not made till 25-6-1994 then the appellant's suit may be dismissed, was not binding on the appellant and this Court, therefore, fell into an error while accepting the abovesaid F.A.O.
No,12/94 in terms of the offer of the learned counsel of the appellant and this Court ought to have seen as to whether the learned counsel was vested with any legal authority to make such a statement, binding the appellant to make the deposit of the abovesaid amount till 25-6-1994 and also binding the appellant of the consequential dismissal of the suit on his failure to make the deposit within time. The learned counsel in this behalf placed reliance on Mst. Noor Jehan v. Azmat Hussain Farooqi and another (1992 SCMR 876).
' Secondly: That this Court had no jurisdiction to pass any order in regard to main suit in the abovementioned F.A.O. No,12/94 which had arisen merely out of an application for the grant of temporary injunction and the Court acted illegally in passing the order that in case of the plaintiff's/appellant's failure to deposit the amount on or before 25-6-1994 his suit shall be deemed to have been dismissed. It is contended that at the most this Court had the jurisdiction to pass the consequential order of the dismissal of the petitioner's application for the grant of temporary injunction and had no jurisdiction to order the dismissal of the main suit, which was not before this Court. The learned counsel in this behalf placed reliance on Qazi Muhammad Tariq v. Hasin Jahan and 3 others (1993 SCMR 1949), Shandev v. Lehri Khan and 2 others (PLD 1983 Lah. 46), Gaman and others v. Province of Punjab and others (1989 MLD 4605) and Khushro S. Gandhi and others v. N.A.
Guzder and others (AIR 1970 SC 1468).
' Thirdly: That after the passing of the order, dated 25-4-1994, by this Court, the plaintiff acted under it and tried to make a deposit in compliance' thereof because he was under the impression that otherwise his application for the grant of temporary injunction, would be rejected. This argument is advanced to furnish an explanation for not having filed the review application straightaway for the review of order, dated 25-4-1994. It is in fact being argued that the appellant never accepted the order passed in F.A.O. As his counsel had made the concessional statement beyond his authority; and ' Lastly: It is submitted that no implied consent can be attributed to the appellant as the appellant was not present in Court on 25-4-1994 when his counsel made the abovementioned statement and this Court passed the consequential order.
8. In summation, the learned counsel for the appellant has prayed that the review petition be accepted and the order, dated 25-4-1994, in F.A.O. No,12/94 be set aside or in the alternative it be modified and instead of imposing a condition of dismissal of the suit the order of dismissal of the petitioner's application for the grant of temporary injunction be passed. It is further prayed that after accepting the review petition and after setting aside or modifying the order, dated 25-4-1994, as mentioned above, the impugned judgment and decree of dismissal of the appellant's/plaintiff's suit be set aside and the case be remanded to the Trial Court for decision on merits in accordance with law.
9. On the other hand, the learned counsel for the respondent while opposing this appeal as well as the review petition has submitted that a false and frivolous suit was filed by the appellant/plaintiff on the basis .Of the alleged oral agreement, the execution of which was denied by the respondent/defendant and no money whosoever was ever paid to the respondents and in this regard it is alleged that according to the plaintiff, the total sale consideration was Rs,12,49,875 and under the agreement he had paid a huge amount of Rs,6,29,875 without any receipt which is not believable. It is also submitted that the plaintiff never got the possession of the land in dispute under the agreement. The suit land was with the plaintiff under lease and on the expiry of lease period the defendant asked him to vacate the suit land and instead of vacating it, the plaintiff has filed this bogus suit.
' Secondly: That the order, dated 25-4-1994, passed by this Court in FAO No,12 of 1994 was passed with the appellant's consent and the subsequent conduct of the appellant also proved that his counsel made the statement with his consent. In this regard the attention of this Court is drawn to the order, dated 27-6-1994, of the Trial Court in which it is recorded that challan receipt of Rs,6,20,000 was produced by plaintiff and an objection to its genuineness was raised by the defendant's counsel and at that time the appellant/plaintiff was present in Court and he at that time did not raise any objection in regard to the order, dated 25-4-1994, and he merely stated that his counsel has gone to Bahawalpur. It is further submitted that on 30-6-1994, the appellant/plaintiff himself came with an application to the Trial Court to the effect that he had himself deposited the, mount of Rs,6,20,000 in Bank on 26-6-1994 and had obtained the valid receipt which was presented to the Court and the receipt was tempered with by the defendant and in this regard an inquiry was prayed for by him: Learned counsel for the respondent contends that this application also shows that the order, dated 25-4-1994, was passed by the High Court with the consent of the appellant. Had it not been so, he would not have tried to act under it and instead would have straightaway expressed his intention of challenging the same before the proper forum.
Similarly when his statement was recorded by the Trial Court on 7-7-1994 he simply insisted that he had himself deposited Rs,6,20,000 in the Bank in the compliance of the order of the High Court and had produced the challan receipt Mark ' A' in the Trial Court. Here again, learned counsel submits, the appellant nowhere states that the order, dated 25-4-1994, was passed without his consent or that he had deposited the amount (though not actually deposited) under protest; ' Thirdly: That the appellant/plaintiff is not entitled to the relief which is prayed by him because of his criminal conduct in Court and he tried to play fraud with the Court by producing a fake receipt of deposit of amount of Rs,6,20,000 and made a misstatement before the Court to that effect and in this regard and on the order of the Court, a criminal case has been registered against him, challan has been submitted, charge has been framed and trial is proceeding against him in the Court of Assistant Commissioner/Illaqa Magistrate, Ahmedpur East; ' NFourthly: That the review petition for the review of order, dated 25-4-1994, is totally misconceived and not maintainable at all because---
(i) the review application cannot be entertained to raise controversial points or debatable points and a plea not raised previously cannot be raised in review. Reliance in this connection is placed on Haji Bostan v. Sahib Shah Ali and others (PLD 1982 SC 102);
(ii) there being no mistake or error on the face of the record, there is no occasion for the exercise of the review jurisdiction. When there is no error apparent, the case is not covered either by the provision of section 114 or Order XLVII, rule 1, C.P.C. Reference is made to Mst. Amtul Kabir and others v. Safia Khatoon and others (1990 CLC 1522), and
(iii) an order passed with the consent of the parties cannot be reviewed. Reliance in this regard is placed upon Muhammad Ashraf and others v. Mst. Arshad Begum and others (1990 ALD 597 (1); ' Fifthly: That a consent order passed on the basis of compromise by the counsel, cannot be recalled on the ground that compromise was effected by the counsel without the party's knowledge or instructions. Power of attorney (Wakalatnama) clearly empowered the appellant's counsel to compromise his case or claim and no fraud or unconscionable motive is attributed to the counsel. Reliance in this connection is paced upon M/s. Arokey Limited, Karachi and another v.
Munir Ahmad Mughal and 3 others (PLD 1982 SC 204) wherein it was held that High Court had no option but to accept compromise application signed by counsel possessing duly executed Wakalatnama empowering him to enter into compromise and the Hon'ble Supreme Court refused to interfere in the order passed by the High Court passed on such compromise and Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others (1971 SCMR 634) wherein the contention that the Advocate had no authority to compromise the matter on behalf of the petitioner was held to be untenable. In this case the Hon'ble Supreme Court followed the dictum of the Privy Council in the case of Sourendra Nath Mitra and others v: Tarubala Dasi (AIR 1930 PC 158), that unless there is specific authority to the contrary, and in the absence of a written authority such as a Vakalatnama an Advocate has implied authority of his client to settle the dispute; ' Sixthly: That the argument of the learned counsel for the appellant in regard to the lack of jurisdiction of this Court in passing the order, dated 25-4-1994, has no force as the appellant's counsel had given a consenting statement, therefore, this Court had no option but to pass the order in terms of compromise and this Court has the inherent jurisdiction to pass the consequential order of dismissal of suit with the consent of the plaintiff or his counsel; and ' Lastly: That the appellant has failed to point out any illegality in the judgment of the Trial Court.
The Trial Court was bound by the order of this Court which was passed with the consent of the parties and it had no option but to dismiss the suit as agreed to by the plaintiff while securing temporary injunction pending the decision of the suit.
10. We have given our anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. The learned counsel for the appellant requests that the review application may be taken up first because if the application is accepted and order dated 25-4-1994 is set aside or modified then there will be no basis to maintain the impugned judgment and decree subject-matter of the appeal. We accordingly take up the review application. The learned counsel for the appellant in support of his arguments has placed his reliance on Mst. Noor Jehan v. Azmat Hussain Farooqi and another (supra) which is not applicable to the facts and circumstances of this case. In that appeal the Hon'ble Supreme Court has held that "the Advocate having power to compromise can enter into a settlement with regard to the subject-matter of the suit in respect of which authority has been given. He cannot introduce any alien matter or any collateral subject in such settlement or compromise". Considering the controversy, facts and circumstances of the case, the Hon'ble Supreme Court came to the conclusion that had these been made known to the appellant in normal course she would not have agreed or introduced to enter into such a compromise. While allowing the appeal, the Hon'ble Supreme Court held as follows:-- "Where a general power to compromise is given to the Advocate in a pending case, he has the authority to settle the dispute of that case and such settlement will be binding on the party.
However, such authority will not authorize the Advocate to compromise dispute which is not subject-matter of the case or is collaterally involved in it unless specific authority in that regard has been given. A client can resile from a compromise or consent given by an Advocate under mistake, misrepresentation by the other side or in contravention of an order passed by the Court or instructions given by him. In case where minor and Pardanashin ladies are concerned Courts have to give due protection to them and the authority to compromise given by them to their Advocate must be closely and minutely scrutinized to avoid any deception or misuse authority."
11. In the present case no collateral and alien subject-matter was introduced by the appellant's counsel and, therefore, he had the authority to settle the dispute of the case and such settlement is binding on the party. The present case is also not a case in which the consent was given by the learned counsel under mistake, misrepresentation by the other side or in contravention of any instruction given to him. It is also not a case where minors or Pardanashin ladies are concerned where the authority of compromise given to Advocates is to be closely and minutely scrutinized to avoid any deception or misuse of such authority. In fact there is no allegation that the appellant's counsel misused the authority or deceived the appellant. Similarly the decision rendered by the Supreme Court in Qazi Muhammad Tariq v. Hasin Jahn and 3 others (supra) is also not applicable to the facts of the present case because no consenting statement was given by the learned counsel and no compromise was under consideration before the Hon'ble Supreme Court and it was never held that the order of dismissal of suit could not be passed by the High Court even under a compromise. Similarly, for the same reason the other authorities referred to by the learned counsel for the appellant in this regard Shandev v. Lehri Khan and 2 others (supra), Gaman and others v. Province of Punjab and others (supra) are also not applicable to the present case.
12. It is clear from the interim orders dated 27-5-1994 as well as the statement of the appellant recorded by the Trial Court on 7-7-1994 that the appellant was fully aware of the order in F.A.O. And he had accepted the same. Rather he accepted the order on 26-6-1994 when he allegedly deposited the amount. It is, therefore, not possible for us to accept the plea raised in the review application that the offer of learned counsel to deposit the balance of the sale price in the Trial Court was without the consent of the appellant. In any case he has ratified the action of his learned counsel cannot turn around and challenge the authority of the learned counsel. Moreover, there is merit it the argument of the learned counsel for the respondent that the learned counsel was empowered to make concessional statement or enter into a compromise. The learned counsel for the respondent has rightly referred to the cases of M/s. Arokey Limited, Karachi and another and Dr. Ansar Hassan Rizvi (supra).
13. There is no merit in the argument of the learned counsel for the appellant that the F.A.O. Was directed against interim order, therefore, this Court could not deal with the main suit. The argument is utterly misconceived because injunction can be granted by a Court subject to condition and if it is granted subject to the condition agreed to between the parties then neither of them can challenge the same especially after availing the relief granted. In the present case the appellant accepted the condition that he would deposit the balance of the sale price by 25-6-1994 and in case of failure his suit may be dismissed. The plea is mere concoction as is clear from the fact that the review application was filed on 24-7-1994 whereas the appeal had already been filed on 18-7- 1994, as already noted. It is clear from the two dates that the review application was filed when it was realized that there is no merit in the appeal: furthermore the review application was filed after the dismissal of the suit.
14. Now coming to the scope of the review. The learned counsel for the respondent rightly argued with reference to the judgment in the case of Haji Bostan (supra) that the applicant cannot be allowed to raise controversial or debatable points in the review application. There is no mistake or error apparent from the face of record which is condition precedent for invoking the review jurisdiction, therefore, the appellant has failed to make out a case for review of the order passed in the F.A.O.
15. The upshot of the above discussion is that there is no merit in the review application. The same is dismissed.
16. The whole emphasis of the learned counsel for the appellant was on the review application and impliedly it was conceded that if the review is not granted then there is no merit in the appeal. It was for this reason that all the arguments, as noted and discussed above, where directed in the review application. There is nothing wrong with the judgment and decree because the Trial Court had no option but to dismiss the suit in view of the clear order of this Court dated 25-4-1994 passed on the basis of the statements of the parties. Therefore, there is no merit in this appeal. The same is also dismissed.
' Before parting with the judgment we may record here that we were informed that the criminal case is pending in the Court of A.C., Ahmad pur East. It is a pretty old matter, therefore, we direct the Trial Court to conclude its trial expeditiously and in any case by 31st December, 1995, even if it has to hold day to day proceedings and submit compliance report to the Additional Registrar of this Court.