SABIHUDDIN AHMED, J.--- This appeal is directed against an order of a learned Single Judge, dated 17-7-2001 dismissing appellant's application under section 12(2), C.P.C. The admitted facts appear to be that the appellant entered into an agreement of sale of her property with the respondent for a total consideration of Rs,32,75,000. The respondent had advanced an amount of Rs,24,00,000 as part of the sale consideration but the appellant was unable to complete the sale within agreed time. Subsequently, further agreement was entered into between the parties on 25-3-1997 whereby it was agreed that the appellant would refund the amount of Rs,24,00,000 already received together with compensation of A Rs,3,00,000 within 90 days of the agreement whereupon the earlier agreement, dated 28-8-1995 would stand terminated. It was, however, further stipulated that in the event of failure to refund the aforesaid amount alongwith compensation the appellant would perform the earlier agreement, dated 28-8-1995 and transfer the property in favour of the respondent. It was further stipulated that the appellant will not change title to the said property till the agreed amount by way of refund and compensation was paid to the respondent.
2. However, according to the respondent the appellant attempted to transfer the property to some other person whereupon the respondent filed Suit No,611 of 1997 for declaration, injunction and specific performance on the original side of this Court. When the suit came up for arguments the learned Single Judge with the consent of learned counsel for the parties pronounced consent judgment to the effect that the appellant would pay an amount of Rs,32,00,000 by way of refund and compensation/profit within two months from the date of the order through depositing the same with the Nazir of the Court whereupon the respondent's suit would be dismissed. However, in the event of the failure of the appellant to do so the respondent suit for specific performance would be deemed to be decreed. A decree was drawn up accordingly.
3. The appellant failed to deposit the amount within the time granted by the Court but on 29-3- 2001, a few days before the expiry of such time an application was submitted on her behalf seeking four months' extension of time. Such application was supported by a personal affidavit to the effect that she was making all efforts to arrange the amount but needed some more time owing to prevailing market condition. By an order dated 2-4-2001 time for depositing the amount was extended by 15 days. Nevertheless instead of making the deposit within the given time the appellant, after engaging another Advocate, filed 'a time-barred application for review of the judgment, dated 7-2-2001 alongwith an application under section 5 of the Limitation Act. The learned Single Judge without going into the question of limitation considered the review application on merits and through a detailed and well-reasoned order dismissed the same on 28- 5-2001 observing that the same was not maintainable in law and was premised on wrong advice of counsel. However, the appellant preferred H.C.A. No,147 of 2001 against the aforesaid order before a Division Bench of this Court which was dismissed in limine vide order, dated 6-6-2001. Thereafter, she assailed the appellate order before the Honourable Supreme Court by way of Civil Petition No,375-K of 2001 through Mr. Muzaffarul Haq but this petition was not pressed and learned counsel stated that he contemplated to move the trial Court for extension of time to deposit the decretal amount.
4. In the meantime an application seeking two months' further time to deposit the amount was submitted on behalf of the appellant. At the hearing of such application on 4-7-2001 the learned Single Judge upon consideration of a statement made by her counsel "on instructions" passed an order that the amount of Rs,27,00,000 be deposited within seven days and ordered that the request for extension of time in respect of the remaining amount of Rs,5,00,000 would be considered on 12- 7-2001 provided the appellant made the deposit of the amount undertaken. However, no such deposit was made and instead, 13-7-2001, an application under section 12(2), C.P.C. Was filed alleging that the consent order, dated 7-2-2001 had been obtained in collusion with respondent and that the appellant's counsel was not authorized to consent to passing of such order on her behalf. This application came to be dismissed by impugned order with maximum compensatory costs under section 35-A, C.P.C.
5. We had partly heard learned counsel for the parties on 2-8-2001 and after having gone through the impugned order requested Mr. Muzaffarul Haq to reconsider whether he wished to pursue this appeal after advising and obtaining further instructions from his client. To enable him to do so, we adjourned the hearing to 3-8-2001. On 3-8-2001 learned counsel, however, insisted that he wished to press this appeal as important questions of law were involved. Accordingly, we heard both counsel at length and also went through the file of Suit No,611 of 1997 which exercise has helped us in acquiring a clear background of the controversy.
6. Mr. Muzaffarul Haq was unable to dispute the factual background recorded by us above in some detail. He nevertheless argued that Mr. M.G. Dastagir, Advocate who admittedly recorded his consent to the passing of the order, dated 7-2-2001 had no power to compromise the suit on behalf of the appellant. To verify this contention we examined the Vakalatnama duly executed by the appellant available in the suit file which clearly confers the power to "comprise the matter" upon the Advocate. Such power has incidentally also been given to Mr. Muzaffarul Haq. By contrast we may mention that such power does not seem to be available in the Vakalatnama executed in favour of Mr. Sohail Hameed who represented the appellant at some stage of the proceedings. It was unfortunate to notice that Mr. Muzaffarul Haq did not even appear to have read the terms of the Vakalatnama.
7. Learned counsel, however, argued with great deal of emphasis that no compromise between the parties could be recorded in the absence of an agreement in writing between them or at least in their physical absence. He argued that in terms of section 96(3), C.P.C. a consent decree was not appealable but according to the statutory provision itself the decree should be premised on the consent of the parties and not their respective counsel. He stated that when the Civil Procedure Code use the word parties it could not be treated as including their counsel.
8. With profound respects, we find the above contention to be patently misconceived. Order 3, rule 1, C.P.C. Expressly stipulates as under:-- "Appearance, etc. May be in person, by recognized agent or by pleader.--- Any appearance, application or act in or to any Court required or authorized by law to be made or done by a party in such Court, may, except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader (appearing, applying or acting, as the case may be) on his behalf: ' Provided that any such appearance shall, if the Court so directs, be made by the party in person."
9. Evidently if the expression "parties" is required to be so construed as to exclude Advocate/pleader there could be no reason why attorneys or other recognized agents should not be similarly excluded. Indeed when we put this question, Mr. Muzaffarul Haq had no answer as he was aware of the fact that a great part of the litigation was conducted not by the appellant herself, but her attorney.
10. Mr. Muzaffarul Haq, however, alternatively argued that it was essential that the duly recorded agreement between the parties themselves should have been present on record and the Court could pass a decree only on the basis of such agreement. In support of his contention he referred to a Division Bench judgment of the erstwhile West Pakistan High Court in Lal v. Siddique PLD 1961 Lah. 823 where at page 840 it was observed:-- "(1) A consent decree passed by the Court on the basis of a proposal made by one party and concurred in or agreed to by the other. In other words, this is a decree which is not the result of adjudication by the Court, but springs from the agreement or the concord of the parties themselves."
11. We have carefully gone through the above judgment and have found that there is nothing therein to warrant the conclusion sought to be drawn by learned counsel. In a pre-emption suit filed by the appellant it was agreed that a decree for possession be granted to the appellant who would be liable to pay such amount to the respondent which the respondent stated to have spent on raising construction thereon upon oath on the Holy Qur'an. The suit was decreed by the trial Court but the decree was set aside by the First Appellate Court as having been passed in excess of its pecuniary jurisdiction. Upon a second appeal preferred by the plaintiff it was urged that the decree of the trial Court was a consent decree and was not, therefore, appealable. The following questions of law were referred to a Division Bench:-- "(1) What is a consent decree?
(2) Whether a decree passed under Order XXIII, rule 3, Civil Procedure Code, would be appealable if it is not preceded by an order recording the agreement, compromise or satisfaction? And
(3) Whether a decree granted on the statement made on oath by a party to the suit or a witness to whom it is offered by the opposite-party is a consent decree and, therefore, not appealable under section 96(3) of the Code of Civil Procedure?"
12. Evidently the question whether the consent of the parties emanated from a written instrument or whether it was recorded by the Court in their personal presence or in that of their authorized representative was never in issue. Nothing turns on the observation that a consent decree springs from a contract between the parties as there is no law requiring that a contract must invariably be made through a written instrument executed by the parties themselves and not their agents.
Moreover, while recording their conclusion on the first question their Lordships after making the observations relied upon by Mr. Muzaffarul Haq and reproduced in para.10 above observed:-- "The true test for determining whether or not a decree should be regarded as a consent decree lies in ascertaining the real intention of the parties and not merely whether a particular procedure, for example the one embodied in Order XXIII, rule 3, C.P.C. Has been observed."
13. With respect to the second question their Lordships held that the omission to pass a separate order recording an agreement of compromise is curable under section 99, C.P.C. And a decree under Order XXIII, rule 3, C.P.C. Does not cease to be a consent decree simply for the reason that it is not preceded by an order recording the compromise of satisfaction and an appeal would not lie against such decree. However, an appeal would lie under Order 43, rule 1, C.P.C. Against an order recording a compromise on the limited question. Whether an agreement or compromise was in fact arrived at between the parties.
14. In our humble view, therefore, the above judgment apart from not supporting Mr. Muzaffarul Haq goes against him insofar as his technical objection regarding failure on the part of the learned Single Judge to record agreement between the parties is concerned. Learned counsel then referred to the pronouncement of the Honourable Supreme Court in Umer Bux and others v. Azeem Khan and others 1993 SCM R 374. In this case an application for compromise was presented before the Court, but when one of the parties alleged that a condition precedent had not been fulfilled and was found by their Lordships that the compromise was not based on any consideration they declined to give effect to it.
15. Mr. Muzaffarul Haq indeed seems to be right to the extent that a compromise after all is a contract and, therefore, its dispute stated to have been resolved in terms of a compromise (as distinguished from a complete withdrawal/waiver of claim), it, must be shown that some consideration had passed between the parties as a contract without consideration would be void.
16. From the facts discussed above it is quite clear that though the appellant had agreed to sell her property and received a major part of the sale consideration there was some change of minds and vide agreement, dated 25-3-1997, the respondent agreed to receive refund of the purchase price together with compensation up to a particular date and upon certain conditions instead of enforcing the equity of specific performance in her favour. However, when the appellant before paying off the respondent attempted to dispose of the property, the latter filed a suit seeking payment within the agreed time and in the alternative claiming specific performance of the contract. The period during which payment was to be made had already expired and the respondent's suit could possibly be decreed merely upon payment of Rs,5,75,000. In such circumstances a compromise was entered into whereby the appellant once again acquired some more time to pay off the respondent instead of parting with the property. Therefore, there could be no reason to infer that the compromise was premised on no consideration at all or that it was made against the interests of the appellant.
17. At the pointation of Mr. Arshad Tayebaly, learned counsel for the respondent, we have found from the record that C.M.A. No,2379 of 2001 was submitted before the trial Court seeking extension of time for depositing the amount ordered in the consent decree which is supported by the appellant's personal affidavit. She never questioned the authority of her counsel to compromise matter but categorically stated that she was making all possible efforts to arrange the amount ordered to be deposited. On the basis of the aforesaid representation she was even granted 15 days' time and it was only after expiry of the same that she took a complete summersault by replacing her counsel and claiming that the latter had no authority to enter the compromise.
18. Mr. Arshad Tayebaly has relied upon the pronouncement of the Honourable Supreme Court in Mst. Bashiran Bibi and others v. Jewn, and others 1997 SCM R 1079, wherein Ajmal Mian, J. (as his Lordship then was) held as follows:--- "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.
' 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.,"
19. From the above, we are quite clear that the conduct of the appellant has been most reprehensible. After having received and appropriated a huge amount of Rs,24,00,000 being about 75% of the sale consideration she is neither willing to refund the amount, nor pay any compensation, nor transfer the property to the respondent. She has only been attempting to avoid her obligations by taking contradictory pleas through frivolous litigation persued by different counsel. As such we are of the considered opinion that such litigation must be effectively discouraged and the appellant should be burdened with maximum costs.
20. At the same time we deem it our duty to express our anguish and reiterate that learned members of the Bar owe a very delicate responsibility towards the Court, their clients and the public in general. Any effort to streamline the system of administration of justice and create public confidence therein might be futile without their cooperation. It was somewhat disconcerting to notice that despite the observations of the learned Single Judge that the appellant had been wrongly advised in filing a review application, his orders were unsuccessfully questioned right up to the level of the Honourable Supreme Court. Again in the Supreme Court Mr. Muzaffarul Haq stated that he would apply for extension of time before the trial Court but, decided to move an application under section 12(2), C.P.C. Instead. Indeed learned members of the legal fraternity ought to be conscious that frivolous litigation is one of the major causes of making our justice delivery system ineffective and the resultant public outcry. Unless we make a concerted effort to arrest it and put our own house in order, the whole system may perish.
' These are the reasons for the short order announced on 3-8-2001.