' This Civil Revision Petition is directed against the judgment and decree, dated 21-3-1996, passed by the learned District Judge, Bahawalnagar, whereby he upheld the dismissal of the suit of the plaintiff in terms of compromise through order and decree dated 24-9-1995 passed by the learned Civil Judge 1st Class, Bahawalnagar.
2. Daud Arshad (petitioner-plaintiff) filed a suit against his brother Abdul Hafeez Wattoo and his wife Razia Hafeez (respondents-defendants) for the partition of the urban property allegedly owned jointly by him and his brother Abdul Hafeez. During the pendency of the suit, the parties effected a compromise on 24-9-1995. The learned Civil Judge recorded all the terms and conditions of the compromise and disposed of the suit accordingly. An appeal was preferred by the present petitioner wherein he challenged the compromise on various grounds. However, the appeal was dismissed on 21-3-1996 being without any merits. Hence, this revision petition.
3. The learned counsel for the petitioner mainly contended that the compromise was not recorded according to the provisions of Order XXIII, Rule 3, C.P.C. He submitted that it was mandatory for the Court to record the compromise and the omission to do so had made the compromise illegal and ineffective. He pointed out that there was no written compromise deed which could become the basis of the compromise decree. He also referred to an affidavit of one Hakoomat Yar Khan Khakwani, Advocate of Bahawalnagar to show that no compromise was finalized between the parties. He referred the cases of Mst. Khurshid Begum v. Mir Muhammad and 8 others (1990 CLC 1614) and National Bank of Pakistan v. Taj Muhammad (PLD 1984 Lahore 417) in support of his contentions.
4. The learned counsel for the respondents, on the other hand, submitted that the Court had duly recorded the compromise before deciding the cases in terms of the compromise. He referred to the proceedings, dated 24-9-1995 to show that all the terms and conditions of the compromise between the parties were specifically mentioned therein and it was signed not , only by the plaintiff Daud Arshad, who himself is an Advocate, but also by his counsel Mr. Abdul Hameed Chaudhary, Advocate. He pointed out that it was also signed by Abdul Hafeez defendant and his counsel. He further submitted that the affidavit of one Hakoomat Yar Khan, Advocate, had no relevancy with the matter in dispute. He maintained that the disposal of the suit on the basis of compromise having been effected between the parties was perfectly legal and valid and could not be challenged through an appeal or revision petition. He placed reliance on the cases of Nazir Ahmed' and others v. Muhammad Din and others (1995 SCMR 933) and Shalimar Filter Industries through Tariq Javed v. Syed Jarar Mustafa Bokhari (1994 MLD 576) in this regard.
5. The provisions of Order XXIII, Rule 3, C.P.C. Are reproduced below for better appreciation of the matter under consideration:--- "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."
6. It is obvious from the above provisions of Rule 3 that the "agreement, compromise or satisfaction to be recorded" does not mean a separate application for this purpose. It is sufficient if such an agreement or compromise is recorded in the Court. In the case in hand the terms and conditions of compromise are contained in the order, dated 24-9-1995, which is signed by the petitioner- plaintiff and his counsel. It may be mentioned that the plaintiff himself is an Advocate and it cannot be said that he could not understand the proceedings of the Court. He admitted having received Rs,3,00,000 from the defendant No,1 and his another brother Haji Raza-ullah. He also admitted having received a post, dated cheque of Rs,2,00,000, No,ARL-186633. Needless to mention that a suit is said to be compromised when the parties adjust their respective claims by mutual concessions. The Court is bound to record and give effect to such a compromise and a decree is to be passed on its basis. The consent decree is one passed with the agreement of the parties and such a decree can be passed otherwise than merely in accordance with the provisions of Rule 3. In the case of Lal v. Siddiq and others (PLD 1961 (W.P.) Lahore 823) a Division Bench of this Court held as under:--- "We have no hesitation in saying that when a decree is passed in accordance with an adjustment, agreement, compromise or satisfaction recorded under the provisions of this rule, it should be regarded as a consent decree."
And also:--- "With the greatest respect to the learned Judges who decided this case, we are of the view that the term 'consent decree' as used in section 96(3) is not confined to the decrees passed in accordance with Order XXIII, Rule 3." And further:- "It seems to us, therefore, that in separating subsection (3) of section 96 from Order XXIII, Rule 3 and by using a different terminojogy, the Legislature clearly intended to include in the term 'consent decree' something more than merely a decree passed under Order XXIII, Rule 3."
And finally as follows:- "If, therefore, a Court passes a decree in accordance with an agreement or compromise or satisfaction, and the decree amply makes it clear that it is the result of such a compromise or agreement or satisfaction, we think it can safely be stated that the omission to pass a separate order recording the compromise, agreement or satisfaction has not affected the merits of the case. In other words, we are in respectful agreement with the view that the omission to pass a separate order recording the agreement, compromise or satisfaction, is curable under section 99 of the Civil Procedure Code. We are, thus, of the view that a decree passed under the provisions of rule 3, Order XXIII, Civil Procedure Code, does not cease to be a consent decree simply for the reason that it is not preceded by an order recording the agreement, compromise or satisfaction.
The requirements of the rule are sufficiently complied with if the decree contains a reference to the compromise and clearly indicates that it is based on the compromise or agreement etc. The decree, as such, would not be appealable under the provisions of section 96(3) of the Civil Procedure Code."
7. The cases cited by the learned counsel for the petitioner are not applicable to the facts of the case in hand inasmuch as in those cases in fact no compromise was finalized between the parties.
In the instant case, the terms and conditions of the compromise were reduced into writing in the order, dated 24-9-1995, which the parties and their learned counsel signed in token of acceptance and correctness. Even an Advocate duly engaged is competent to make a statement in Court, which shall be binding upon his client. Reliance is placed on the following cases:---
(a) Siraj Din v. Muhammad Yousaf and others (1982 SCMR 539), and
(b) Dr. Ansar Hassan Rizvi v. Syed Mazahir Hussain Zaidi and 3 others (1971 SCMR 634).
8. It may also be mentioned that a compromise decree is non-appealable under section 96(3), C.P.C. In the cases where a consent decree is passed, the parties have nothing to appeal against.
There is no illegality or material irregularity is recording and approval of the compromise and the dismissal of the suit as having been withdrawn in according to law. As Mr. Abdul Hameed Chaudhary, counsel for the plaintiff signed alongwith Daud Arshad plaintiff, the affidavit of Mr. Hakoomat Yar Khan Khakwani, Advocate, a stranger to the compromise, is irrelevant.
9. No material irregularity or illegality affecting the decision of the Courts below has been pointed out. The revision petition is accordingly dismissed, ( leaving the parties to bear their own costs.