' NASIR ASLAM ZAHID, J.---This petition for leave has been filed against the impugned order dated 9-3-1998 passed by a Full Bench of the Sindh High Court disposing of the appeal of the petitioners.
We have heard Mr. Abdul Rahim Kazi, learned Advocate Supreme Court for the petitioners and Mr. S.M. Zafar, learned Senior Advocate Supreme Court, who has appeared for respondent Bank, on caveat. With the assistance of the learned counsel, we have gone through the record '
2. Suit filed by the respondent Bank was decreed as prayed jointly and severally against the petitioners by the Banking Tribunal, Karachi, on 31-5-1994 in the sum of Rs,141,802,273 with costs.
Petitioners filed an appeal before the Sindh High Court under section 9 of the Banking Tribunal Ordinance, 1984. By the impugned order dated 9-3-1998, the said appeal was disposed of by consent. It is considered appropriate to reproduce the entire impugned order dated 9-3-1998 passed by the Full Bench of the Sindh High Court comprising three Hon'ble Judges including the then Hon'ble Chief Justice:- "IN THE HIGH COURT OF SINDH. KARACHI ' First Appeal No, 22 of 1995.
1. For orders on Civil Miscellaneous Application No, 293 of 1998:
2. For hearinf of Civil Miscellaneous Application No, 147 of 1998: (C/A filed by appellant No,2)
(Report filed by Official Assignee)
(Affidavit in evidence by respondent filed): ' 09-3-1998. Miss Rashda Siddiqua for the appellants alongwith Ghulam Mustafa Memon, appellant No,2, Mr. Habibullah Samo and Mr. Abdul Haleem Siddiqui for the respondent alongwith Syed Alique Ahmed Hasni, Vice-President, U.B.L.
1. This application for discharge of Mr. Iqbal Qazi is granted.
2. Through this application prayer is made by the respondent-bank to dismiss this appeal on the ground that the appellants through an out of Court agreement dated 21-9-1995 had inter alia agreed to withdraw such appeal unconditionally. We have examined such agreement which is appended with this application and which is admitted by the respondent. Relevant paragraph 15 thereof as under:- "15. After execution of this compromise deed the parties shall withdraw the following cases pending in the Courts of Law:--
(i) Suit No, 174 of 1993 filed by the bank against M/s. Enterprises Six pending in the Bank Tribunal.
(ii) Application moved by the Bank to become party to Suit No,1248 of 1991 filed by M/s. Rahim K.
Shaikh Transporter against M/s. Enterprises Six.
OW Suit/suits filed if any by the borrower/guarantor for damages and otherwise against the Bank.
(iv) Appeal if any filed by the borrower/guarantor in High Court of Sindh against judgment in Suit No,103 of 1993, passed by the Banking Tribunal in favour of the Bank.
(v) Suit/suits or any other legal proceedings initiated by the borrowers/guatrantor in connection with or in relation to the liabilities transpiring in this agreement."
' Amongst the other terms of this agreement the most significant was that the decretal amount of Rs,141,802,273 stood reduced to Rs,67,042,000 only but that, of course, was subject to the arrangement of payments inter partes as detailed in the document. One of such terms (3) was that a sum of Rs,10,000,000 had to be paid by the appellants to the bank in lieu whereof the bank had to release 41 vehicles and 100 trucks/chassis against a trust receipt. Such being done under another term (5) the appellants were to render the trucks/chassis road-worthy, duly registered and insured and for so doing the proceeds of the 41 vehicles and for the shortfall personal resources of the appellants were to be utilised. It is the case of the appellants that they did pay the aforesaid sum of Rs,10,000,000 but the title documents of the 41 vehicles and keys were not made over with the result that the agreement could not be worked upon. It is, however, an admitted position that without such documents and without such keys, the 41 vehicles were transferred by the appellants but in such circumstances predictably the full value thereof could not be recovered.
It is also the case of the appellants that 40 of the trucks were rehabilitated by them but this position the respondent denies. Indeed the Official Assignee, who has conducted a survey under our orders, in the first place confirms the making over of the 41 vehicles and 99 trucks and in the second has affirmatively stated that the trucks, which are still enjoying the parking facility provided by the bank, are in a poor shape. In other words as Mr. Abdul Haleem Siddiqui would put it the appellants against payment' of Rs,10,000,000 have recovered over Rs,40,000,000 upon the unauthorised sale of the said 41 vehicles. Even so the appellants appear to be in a mood to retrieve the situation and for such reason the appellants' learned counsel have agreed with respondent bank that this and the connected appeal be disposed of in the following terms:--
(a) That the Official Assignee would assume possession of the said 99 trucks, one of which is stated to be lying with National Motors Limited. The Official Assignee may hire and fire the existing staff at the site and may also depute his own staff in addition to or in place thereof.
(b) That the official Assignee would with the assistance of the appellants recover balance of the prices of the 41 vehicles already sold by the appellants and wherever available pass on title documents together with the keys relevant to each transfer. However, no such transfer would be effected unless the Official Assignee is satisfied that the position of the recovery of arrears is actually what has been given out to him liy the .Appellants and/or by the purchasers of the vehicles. In cases where the Official Assignee is not so satisfied, he can make an assessment of his own in a just and fair manner and the parties including the purchaser would be bound for such conclusion of the Official Assignee.
(c) Upon realizations and with such funds as the appellants make available to the Official Assignee, the Official Assignee would rehabilitate 99 trucks plus recovering one of the missing trucks and from time to time effect sales thereof in the open market, depositing the proceeds of each sale with the bank towards clearance of the liability of the appellants as stipulated in the compromise though at the same time Official Assignee may retain such portion of the sale proceeds with him as he considers necessary for the purposes of quickly rehabilitating the trucks/chassis. At the same time Official Assignee would all the while ensure that in doing so the rights of the bank are in no way effected and the liability of the appellants is in no way reduced, such liability clearly including making regular contributions in cash towards the rehabilitation of the said trucks/chassis;
(d) That once the full payments of the bank have been made in terms with the above compromise, the accruals on the dues being worked out on the basis of the said terms, the balance, if any, or the remaining trucks if any, would be made over by the Official Assignee to the appellants and for such purpose the concurrence of the bank would not be necessary.
(e) That in case any dues of the bank still remain outstanding the bank would be free to execute the decree against which this appeal has arisen but execution would be sought only after the Official Assignee issues a certificate saying that no further recoveries can be made at his end.
(f) That in consonance with the compromise and pursuant to this order all parties would withdraw the pending proceedings including such as have come to pend subsequent to the entering into the compromise.
(g) That the Official Assignee would be obliged to hand over the possession of the property where the trucks are lying (Clifton, opposite Mideast Hospital) as soon as convenient to the bank.
(h) That if any dispute arises as to the effect of the compromise dated 21-9-1995 or the impact thereon of the above agreed terms the dispute would be decided by the Official Assignee through a speaking order which would be binding on all the parties unless set aside by he competent Court; and .
(i) That the Official Assignee as to the execution of the above works would be provided the necessary finances by the appellants from time to time. Besides, the Official Assignee would be entitled to recover his fees and charges according to the applicable rules and the costs thereof would be payable/adjustable against the appellants.
' In the foregoing terms, this appeal is disposed of by consent.
(Sd.)
Wajihuddin Ahmed, Chief Justice.
(Sd.)
Kamal Mansur Alam, Judge.
(Sd.)
Hamid Ali Mirza, Judge."
3. Mr. Abdul Rahim Kazi, learned counsel for the petitioners raised the following contentions in support of the present petition for leave against the above order of the Full Bench of the High Court:---
(i) Neither the Petitioners nor their counsel had give any consent for disposing of the appeal filed by the petitioners, according to the terms mentioned in the impugned order.
' We find no merit in this contention. The impugned order notices the presence of petitioner No,2, Ghulam Mustafa Memon, alongwith learned counsel appearing for both the petitioners. Their presence is not denied. The impugned order recorded to an out of Court agreement dated 21-9- 1995, according to which, petitioner had agreed unconditionally to withdraw the appeal before the High Court. Mr. Abdul Rahim Kazi also admits the execution of the said agreement dated 21-9-1995, which had been entered between the parties after the appeal had been filed by the petitioners before the High Court. In para. 2 of the impugned order of the High Court it is mentioned that the petitioners' counsel has agreed with the respondent Bank that the connected appeal as well as the appeal in question be disposed of on the terms mentioned in the impugned order. The last paragraph of the impugned order states as follows:--- "In the foregoing terms, this appeal is disposed of by consent."
' A perusal of impugned order which has been reproduced hereinabove shows that all the pending disputes between the parties including all pending litigations were being' disposed of and on very clear and detailed terms which also confirm that the matter was disposed of with consent of the parties. If at all, when the order was passed on 9-3-1998, there was any doubt as regards any term of the consent order, an objection would have been raised by the petitioners or by their counsel and, in any case, some application made immediately before the High Court that there were' some doubts regarding the terms and in fact what had been recorded was not intended to be accepted by the petitioners. No such step was taken by the petitioners. Instead, they filed the present petition before this Court after two weeks on the ground that no consent had been given. In the face of the impugned order, where at least at two places the agreement/consent of the petitioners is recorded and for other reasons mentioned above, we cannot accept the statement now being made on behalf of the petitioners that the impugned order had been passed without' their consent.
(ii) It was then argued that there was a Written Agreement between parties and terms of the said agreement could not be altered as had been done by the impugned order of the High Court.
There is no merit in this contention. An agreement between the parties can always be modified and altered by consent and that is what has been done in this case. The impugned order is a consent order and, by consent, parties can always modify, add or alter the terms of an existing agreement between the parties.
(iii) The appeal under the Banking Ordinance was to be heard by a Division Bench of the High Court and on a question of law which had arisen in other appeals filed by other parties, the matter had been referred to the Full Bench and the appeal in which the impugned order has been passed was also to be heard alongwith the other appeals. According to Mr. Abdul Rahim Kazi, in the circumstances, the said appeal filed by the petitioners could not be disposed of finally by the Full Bench of the High Court.
We find no substance in this contention also. It was a civil appeal pending before the High Court.
Parties to a civil appeal can always request the Court to dispose of the appeal by consent despite the fact that on the day when such request is made the appeal may not be fixed for final hearing.
On 9-3-1998, when the appeal was fixed for hearing of the application filed by the respondent Bank for disposal of the appeal, the parties were represented by their counsel and representatives of the petitioners were also present. No argument has been advanced that the learned counsel appearing for the petitioner had no authority to get the appeal disposed of by consent and, in any case, one of the petitioners/appellants was present before the High Court. In the circumstances, the High Court was not debarred for disposing of the entire appeal with consent of the parties.
(iv) It was finally argued that there was no written compromise and without a written compromise, the appeal could not be disposed of on the oral consent of the parties and/or their counsel.
' In this regard, learned counsel for the petitioners referred to the provisions contained in Order XXIII, rule 3, C.P.C. And also relied upon the following judgments:---
(a) Nalini Kanta Sen v. Babu Monaranjan Prasad Barman (PLD 1967 Dacca 115).
(b) Iqrar Beg v. Hanan (PLD 1979 Karachi 620).
(c) Sajida Sultana v. Eastern Traders (PLD 1971 Karachi 109).
(d) Country Products Export v. Bawany Sugar Mills (PLD 1968 Karachi 115).
' On the other hand, Mr. S.M. Zafar, learned Senior Counsel for the respondent Bank, has relied upon a decision of this Court in the case of Bashiran Bibi v. Jewni (1997 SCMR 1079). It is a short decision and, in view of the contention raised by Mr. Abdul Rahim Kazi on the basis of the language of Order XXIII, rule 3, C.P.C., it is ocnsidered appropriate to reproduce the entire decision reported in 1997 SCMR 1079:--- "This is a petition for leave to appeal against the order dated 2-4-1994 of Division Banch of the Lahore High Court passed in Writ Petition No,26/R of 1974 filed by the petitioners, disposing of the same as under:-- '2. The dispute in this petition pertains to land measuring 6 acres comprising Khasra Nos.16 to 21 of Square No,29 situated in Chak No,166/E.B., Tehsil and District Vehari. Learned counsel for the parties state that it has been agreed bowed' the parties that petitioners will retain Khasra numbers 16,17,18 and 19 of Square No,29 while the respondents, in lieu of their claim, shall have Khasra numbers 20 and 21. The petitioners undertake to deliver the vacant possession of Khasra numbers 20 and 21 to the respondents by 30th May, 1994 without further litigation or objection. The trees standing, if any, in these two Khasra numbers may be removed by the petitioners by the said date, that is, 30th May, 1994. R.L-II Registers of the parties will be amended accordingly. Writ Petition No,26/R of 1974 stands disposed of in terms of the agreement reached between the parties leaving them to bear their own cost. Review petition is also disposed as not pressed."
' The petitioner has,. Therefore, filed the present petition for leave to appeal.
2. In support of the above petition, Rana Abdul Rahim Khan, learned Advocate Supreme Court appearing for the petitioners, has vehemently contended that the learned counsel Mr. Muhammad Younas Bhatti, who appeared for the petitioners in the High Court, was not competent to enter into the compromise contained in the above-quoted portion of the impugned order. His further submission was that the compromise should have been recorded in writing and the learned Judges of the Division Bench should have verified the contents of the same from the parties. In furtherance of his above submission he has referred to the case of Messers Arokey Ltd. And another v. Munir Ahmad Mughal and 3 others (PLD 1982 SC 204) and the case of Umar Bakhsh and 2 others v. Azim Khan and 12 others (1993 SCMR 374).
3. In the first case this Court declined a petition for leave to appeal by holding that the petitioners'
Advocate had no motive to enter into a compromise against the interest of his clients and that under the Vakalatnama, Advocate had the power to enter into the compromise on behalf of the petitioners.
' Whereas in the second case this Court allowed an appeal against the judgment based on a compromise on the ground that the parties disowned the compromise before the Court concerned and .Not confirmed the contents of the compromise application and alleged compromise entered into was without consideration.
4. Rana Abdul Rahim Khan, learned counsel' for the petitioners, has not been able to show that Mr. Muhammad Younas Bhatti, learned counsel who appeared for the petitioners before the High Court, did not have the requisite power under his Vakalatnama to enter into the arrangement contained in the above-quoted portion of the impugned order, nor he has been able to demonstrate that the above learned counsel had any motive to act without the instructions of the petitioners against their interest.
5. The contention that the compromise should have been recorded in writing and the contents thereof should have been verified by the learned Judges of the Division Bench from the parties is also devoid of any force.. Before the High Court if the learned counsel for the parties make a statement, the Court, as a matter of practice, accepts their statement without doubt as to the correctness or authenticity of the same. The above two reports relied upon do not support the petitioners' case. The first cited judgment runs counter to the above submission of the learned counsel for the petitioners, whereas the fact of the second case are distinguishable from the case in hand. The petition has no merits. Leave is refused."
'' In the facts of this case, decisioh of this Court in the case of Bashiran Bibi (1997 SCMR 1079) is a complete answer to the contention raised on behalf of the petitioners. It has already been noted that the compromise recorded in the impugned order of the Full Bench of the High Court was neither disowned by the petitioners or their counsel before the High Court, nor any application was made before the High Court as to the compromise terms not being consented by them.
' There is no sutstance in this petition, which is dismissed and leave is refused. Interim orders of stay stand discharged.