' By order dated 14-6-1977 both the parties were directed to be summoned because it had "become essential to record their statements on oath in this Court". On 15-6-1977 both the parties were present and the Court wanted to record their statements but the learned counsel requested for time to settle the matter out of Court. On 30-6-1977, on C. M. 2663/C-77 which is signed by both the. Learned counsel and as submitted on behalf of both the parties, it was noted that the counsel for both the parties bad made a request for disposal of the main appeal in accordance with the compromise recorded therein (C. M. 2663/C-77): The request in this application was allowed. The main appeal was ordered to be fixed for hearing today but at the same time both the learned counsel were directed to ask their clients to be present in Court so that their statements are recorded.
2. The respondent is present. Mr. Khurshid states that his client was asked to attend the Court but he has not appeared. Case has been called out twice since morning but he is absent. There is no alternative but to proceed with the case. The respondent is present and states that he wants to abide by the agreement recorded in the Application C. M. 2663/C-77.
3. Mr. Khurshid, learned counsel for the appellant, states that in connection with the compromise his client had sought two concessions from the respondent one that he should be given two months time to vacate the premises and two, that the respondent should not recover the arrears of rent up to the expiry of the aforementioned two months which period was to commence from 15- 6-1977. In return, he had agreed to forego his alleged claim with regard to the recovery of Rs, 5,000.
Mr. Khurshid further states that the Application No, C. M. 2663/C-77 was drafted by Mr. Hidayat Ali Taib, learned counsel for the respondent, on the agreement having been reached and in pursuance of the instructions that his client gave to him and he further gave the same to Mr. Hidayat. He further states that the contents of C. M. No, 2663/C-77 represent the settlement between the parties which took place out of Court.
4. Mian Hidayat Ali, learned counsel for the respondent, has supported the statement made by Mr. Khurshid and states that the contents of C. M. No, 2663/C of 1977 which embody the agreement between the parties are in accordance with the settlement reached between both the parties and further that he drafted the same in pursuance of the settlement and aforementioned instructions.
5. The appellant has, despite direction to that effect, failed to appear in Court. From what has been stated above, I am satisfied that the parties did reach a compromise which is not against any law.
However, it is also clear that the appellant, despite directions for appearance in this Court, has failed without lawful excuse to appear in person so that he may have been examined. Earlier too, he was required to appear in Court for hi examination on oath vide order dated 14-6-1977. Keeping in view all the circumstances of the case, I consider -it a fit case for proceeding under Order X, rule 4(2) read with section 107 and Order XLI, rule 33, C. P. C. Sub-rule (2) of rule 4 provides for two alternatives : one for pronouncement of the judgment against the defaulting party ; and two, any other order in relation to the subject-matter as the Court thinks fit. In this case, if the judgment is pronounced against the appellant, the appeal would have to be dismissed without air gain to the appellant in accordance with the compromise which I am satisfied was reached between the parties out of Court. I, therefore, instead of pronouncing judgment against the appellant, direct that this appeal be and is disposed of in terms of the agreement recorded and embodied in C. M. No, 2663/C-77. There shall be no order as to costs. in terms of compromise.