CH. IJAZ AHMAD, J.- The brief facts out of which the present first appeal arises are that the appellant-petitioner is owner of House No. 22, Block 'C' in Farid Town, Sahiwal, whereas the respondents are owners of house No. 2l-C in Farid Town. Sahiwal. The appellant/petitioner filed a suit for permanent and mandatory injunction on 2.ll.l996 against the respondents alongwith the application with the following prayer:- M J f j J'O ^ jj.Tr S-t-J c Jl Jl33 fit J*{{Urdu text}}
2. On 2.6.l996, the learned Civil Judge. Sahiwal issued summons/notiees to the defendants/respondents for 7.ll.l996. On 7.ll.l996. Mr. Akram Diyat, Advocate filed power-of-attorney on behalf of respondent/defendant No. l. Respondent/defendant No. l also filed an application u/O.
39, Rule 4 of CPC and the case was adjourned for filing written statement on behalf of icspondents/defendants for l0.ll.l996. As the service upon defendant No. 2 was not effected, therefore, the summons/notiees were issued to respondent/defendant No. 2 for l0.ll.l996. On l0.ll.l996. Mr. Akram Diyat, Advocate filed power- of-attorney on behalf of respondent/defendant No. 2 and the case was adjourned for filing reply of the application U/O l8. Rule l8 and Order 39 CPC for ll.ll.l996. On ll.ll.l996. The reply of the application was filed and the case was adjourned toi :- gs of l2.ll.l996 are reproducedSd/-CIVIl JUDGE.lST ClASS SAHlWAStatement of counsel for the plaintiff W.O.l have heard the statement of learned counsel for the plaintiff. That keeping in view of the statement, the plaintiff's suit be disposed of. 'Sd/-Civil Judge lst ClassSahiwal.Dt. l2.ll.l996Presence as before. . -Keeping in view the statement of counsel for the defendants and that of plaintiff.- the suit of the plaintiff is hereby disposed of accordingly. File be consigned to the record room.Sd/Civil Judge lst Class.Sahiwal.Dt. l2.ll.l9963. The respondents aggrieved by the order of the learned Civil Judge dated l2.ll.l996. Tiled an appeal before the District Judge, which was accepted by the judgment and decree dated 9.4.l997 and the case was remanded to the trial Court for decision afresh from the stage of order dated l2.ll.l996. The operative part of the judgment of the learned District Judge is reproduced hereunder:- ." These proceedings of the Civil Judge hardly call for any comments. These proceedings do not amount to any statement and do not determine the right of the parlies in any manner whatsoever. The whole proceedings are a nullity in the eye of law. The learned Civil Judge should be careful in future in taking judicial proceedings.. Since no effective adjudication of the dispute between the parties was made, therefore..,the case calls for Remand."The present petitioner aggrieved by the judgment and decree of the District Judge, tiled F.A.O. No. 49/97, which was admitted tor regular hearing on 8.9.l997. The .learned counsel of the respondents took a preliminary objection on 24.9.l997 -belore this Court that F.A.O, is not maintainable against the order of the learned District Judge dated 9.4.l997 by virtue of Section l02 CPC. The learned counsel of the petitioner orally requested that the F.A.O, may be converted into revision, which, was not opposed by tire learned counsel of the respondents, therefore. F.A.O, was converted into revision vide order dated 24.9.l997.4 The learned counsel of the petitioner contended that Mr. Akram Diyal, Advocate tiled power-of-atturnev on behalf of the respondents and by virtue of contents ol the povver-of-attariley. learned counsel was competent to give the statement ol the learned counsel of the respondents is binding upon them. He luriher argued that the learned, counsel of the respondents made statement voluntarily in the Court. The respondents did not file any application against their Advocate belore Punjab Bar Council that he committed professional misconduct, lie tmtiter argued that lu did |iiot mention in grounds of the appeal before the first Appellate Court any allegation against their Advocate, therefore, the judgment and decree of the learned Civil Judge dated l2.ll.l996 is a consent decree and appeal is not maintainable against the consent decree by virtue of Section 96(3) CPC. The judgment and decree of the trial Court is termed as a decree by virtue of Section 2(2) CPC. He further argued that offer was made by the learned counsel of the respondents, which was accepted by the learned counsel of the petitioner, theretore, cither party could not resile from that agreement.5. The learned counsel of the respondents contended that record of the trial Court reveals that learned counsel of the petitioner made statement without instructions. He further argued that judgment and decree of the trial Court is termed as decree, as all the ingredients mentioned in Section 2(2) CPC are fulfilled. He further argued that appeal is competent against the judgment of the trial Court u/O. 43, Rule l(M)
CPC. He further argued that the judgment and decree of the first Appellate Court are valid and proper in accordance with law, therefore, there is no error of jurisdiction and material irregularity, hence the present revision petition is not maintainable.6. I have given my anxious consideration to the contentions of the learned counsel of the parties, it is admitted fact that the statement of the learned counsel of the respondents did not reveal that the case may bp decided in terms of his statement, ln the absence of these words, the learned trial Court did not have jurisdiction to dispose of the case in terms of the statement of the learned counsel of the respondents, therefore, contentions of both the learned counsels are not relevant to resolve the controversy arising out of the proceedings between the parties. The learned District Judge has perused the record minutely and came to a definite conclusion that the trial Court failed to record the proceedings in accordance with law and came to findings of fact that there was no compromise between the parties, therefore, the findings of fact are that the first Appellate Court cannot be disturbed by this Court while exercising jurisdiction u/S. ll5 CPC. I am fortified by the judgment of the Boa ' of Intermediate and Secondary Education v. Khalid Mehmood Syed (NlR l985 Civil ll4) and the relevant observation is reproduced hereunder:-\"it is an established proposition of law that findings on questions of fact or of law, however, erroneous the same may bd recorded by a Court of competent jurisdiction, cannot be interfered with by the High Court, in exayfise of its revisional jurisdiction, under Section ll5, Civil Procedure Code, unless such findings suffer from jurisdictional defect, illegality or material irregularity."The proceedings of the trial Court did not fulfil the requirement and qualifications provided u/O. 23, Rule 3. Rule 3 is reproduced hereunder:-"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."From the above rule, it is the duty of the trial Court to satisfy before accepting the compromise, arrived between the parties, but the proceedings recorded by the trial Court in such a manner from which it does not borne out that the trial Court passed the compromise decree after its satisfaction in accordance with the above- mentioned Rule.7. In view of what has been discussed above, the case is remanded to the trial Court to decide afresh from the stage of order dated l2.ll.l996. The trial Court is further directed to decide the suit within four months from receiving the judgment of this Court. Both the parties are directed to appear before the trial Court on 5.ll.l997.