MUHAMMAD ILYAS, J.---This order shall dispose of C.P.S.L.A. No. 31-L/1996 as well as C.P.S.L.A. No.32- L/1996 as they relate to one and the same suit brought by the petitioner, Allah Ditta against the respondent, Bashir Ahmad.
2. The above suit was for specific performance of an agreement to sell certain land. It was alleged by the petitioner (plaintiff in the suit) that the respondent, (defendant in the suit) had agreed to sell the land in dispute for Rs.12,49,875. According to the petitioner, he paid Rs.6,29,875 at the the when the agreement was entered into and the balance of Rs.6,20,000 was to be paid at the the of attestation for mutation of sale of the land in suit or at the the of the sale-deed in regard thereto. It was maintained by the petitioner that the respondent wanted to resile from the said agreement and he was, therefore, constrained to file the suit.
3. According to averments of the petitioner he was handed over possession of the suit land at the the the agreement was entered into. Apprehending his dispossession by the respondent, he, alongwith the suit, filed application for grant of temporary injunction restraining the respondent from interfering with his possession. A Civil Judge of Ahmadpur East, District Bahawalpur, who was seized of the matter granted temporary injunction subject to the depositing of Rs.6,20,000 (balance of the sale price which was to be paid by the petitioner on his own showing) by the petitioner in the Court within seven days failing which his application for temporary injunction was to be deemed to have been dismissed.
4. Feeling aggrieved by the condition regarding payment of the above amount, imposed by the learned trial Court for availing of the temporary injunction the petitioner filed an appeal, namely, F.A.O. No.12-1994/BWP before the Bhawalpur Bench of the Lahore High Court which was admitted to a regular hearing. He also made petition, i.e., C. M. No.1-1994 in the said appeal for grant of temporary injunction. Notice in the above C.M:, was issued to the respondent for 25th April, 1994 when the C.M. As well as the main appeal (F.A.O. No. 12-1994/BWP) were disposed of by Muhammad Amir Malik, J., as he then was, with the following order:- "FAO & C.M. 1/1994.---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 fails 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. "
5. In pursuance to the above order, the suit was remanded to the learned trial Court which fixed it for 27th June, 1994. On this date, the petitioner appeared in person and submitted challan receipt showing a deposit of Rs.6,20,000 having been made by him on 25th June, 1994. This receipt was objected to by learned counsel for the respondent alleging that it was a forged document.
Thereupon, the officials concerned were summoned and their statements were recorded by the learned trial Court on 7th July, 1994. Their statements revealed that, the petitioner had not deposited Rs.6,20,000 and, instead, a sum of Rs.1,20,000 had been deposited by him. In view of the above discovery, it was held by the learned trial Court that the suit shall be deemed to have been dismissed in terms of the order of the High Court judgment and decree were, accordingly, passed by the learned Civil Judge. Besides, he directed the local police to register a criminal case against the petitioner for preparing and producing before him a fake challan receipt. The criminal case so registered is still pending decision.
6. The petitioner assailed the judgment and decree passed by the learned trial Court by means of an appeal, namely, RFA 42/1994/BWP, on 18 July, 1994. Thereafter, on 24th July, 1994, he also made a review petition i.e. R.A. No.10/1994/BWP, seeking review of the earlier order of the High Court, dated the 25th April, 1994 by which his F.A.O. No.12/1994 was disposed of.
7. A Division Bench of the Lahore High Court, Bahawalpur Bench dismissed the said appeal (R.F.A.
No.43 of 1994/BWP) and the Review Petition (R. A. 10-94/BWP) by a single judgment. Hence the to petitions, mentioned at the outset for leave to appeal against the judgment of the learned Division Bench.
8. As noted by the learned Division Bench in its impugned judgment, the fate of the whole dispute between the parties hinges on the validity or otherwise of the consent order, dated the 25th April, 1995 passed by Muhammad Amin Malik, J. As he then was, in F.A.O. No. 12-1994/BWP. If the said order did not suffer from any infirmity, the judgment and decree by the learned trial Court, while disposing of the suit, would not warrant any interference but if the consent order is struck down, the above judgment and decree, which are passed thereon would also have to be set aside. So we passed to examine the petitioner's plea against the consent order.
9. It was contended by learned counsel for the petitioner that F.A.O. No. 12-1994/BWP was directed against the conditional temporary injunction, passed by the learned trial Court on an application made by the petitioner, and, therefore, while disposing of the F.A.O., the learned Judge, Muhammad Amir Malik, as he then was, could not decide the fate of the suit. The argument proceeds that the learned Judge in chamber could simply uphold or set aside the conditional temporary injunction or modify the same but could not pass any order relating to the main suit itself.
10. The above argument was also advanced before the learned Division Bench which passed the judgment under challenge but was not accepted. Relevant portion of the impugned judgment in this regard reads as follows:-- "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 argumentth 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 to 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."
11. There is lot of force in the above reasoning of the learned Division Bench. Application of the petitioner, in which temporary injunction was issued by the learned trial Court, was made by the petitioner in the suit filed by him and thus the said application was a part of judicial proceeding initiated by him in regard to the land in dispute. It would, therefore, follow that while entering into compromise forming basis of the consent order in question, the parties' counsel or the learned Judge in Chamber did not deal with any alien matter or any collateral subject. The petitioner's application in which the conditional temporary injunction was passed by the learned trial Court, had arisen out of the said suit and thus both the suit as well as the application for temporary injunction formed part of one and the same judicial proceeding. Both parties to the case were benefited by the consent order in one form or the other. As for the advantage accruing to the petitioner, he got extension in the for deposit of Rs.6,20,000 which, as fixed by the trial Court, had expired and the stay order granted to him by the learned trial Court had come to an end. Now, in pursuance of consent order, the stay order again became available to him and it was to continue till the disposal of suit if he had deposited Rs.6,20,000 on or before 25th June, 1994. Now, adverting to the respondent, the benefit falling to his lot was that payment of Rs.6,20,000 to him was ensured in the event of the success of the suit, and in the case of its non-deposit within the stipulated the, the suit against him would have failed. As explained above, the petitioner ratified the consent order passed on the basis of the statement made by him counsel by telling the trial Court after the remand of the suit in consequence of the consent order, that he had deposited Rs.6,20,000 in terms of the said order although of the respondent's objection, it transpired that instead of depositing the above amount, he had deposited Rs.1,20,000 only. Be that as it may, even the deposit of Rs.1,20,000 was in terms of the consent order because an amount less than Rs.6,20,000 could also not be deposited by him except under the consent order, as the the fixed by the trial Court for making the deposit had expired much earlier. As a result of the consent order there was a temporary injunction in his favour which protected his possession over the land in suit till the disposal of the suit as aforesaid. The petitioner did not think of finding fault with the consent order till after filing appeal against the judgment and decree passed by the learned trial Court in the main suit. It was during the pendency of the appeal against the said judgment and decree that he decided to take exception to the consent order by making the review petition under consideration.
12. What emerges from the above discussion, therefore, is that the consent order to which the petitioner's counsel was a party, was binding on the petitioner. Even it is assumed that his learned counsel had exceeded his authority in subscribing to the consent order to the learned Judge in Chamber had gone beyond his jurisdiction in making the said order the petitioner had clearly ratified the compromise incorporated in the above order by his subsequent conduct which has been spelt out a little earlier. Looked from any angle, the consent order does not call for any interference. In other words, there is no good reason to review the said order.
13. As for the appeal against the judgment and decree of the learned trial Court, it was not urged by learned counsel for the petitioner that the petitioner had, in fact, deposited Rs.6,20,000 in compliance with the consent order within the stipulated period. The learned trial Court was, therefore, justified in holding that his suit stood dismissed in terms of the said order due to his failure to make the requisite deposit in the. Thus, the judgment and decree, by which the suit was disposed of by the learned trial Court, to, are not open to any legitimate exception.
14. In result both the petitions, mentioned in the beginning are dismissed and the leave prayed for therein is refused.