Ch. Mussarat Ahmad, the writ petitioner had filed a suit for grant of declaration with regrd to lands measuring 25 acres situated in Chak No.52-P Tehsil and District Rahimyar Khan and 64 acres of land in Cheel, Taluka Badin, Tehsil and District Badin on the basis of memorandum of family partition dated 14-7-1967 along with grant of permanent injunction. The suit was contested by filing written statement on behalf of defendants. Issues were framed but on 15-3-1999 a compromise was effected between Iftikhar Ahmad, General Attorney of defendant No.4, Fazal Ahmad with other parties. After some time, an application was moved by Iftikhar Ahmad, General Attorney to set aside the compromise as the petitioner had failed to comprehend the compromise. It was prayed that the earlier compromise be set aside and another compromise be allowed to be presented.
This application was contested. Issues were framed and the parties adduced their evidence. The learned Senior Civil Judge accepted the application on 19-5-2003 and granted decree for compromise deed Exh.C.1 to the defendant No.4. A revision was filed against that order was dismissed on 21-7-2003 by learned Additional District Judge, Rahimyar Khan. Dissatisfied with the order of the learned Additional District Judge, the instant writ petition has been filed.
2. Learned counsel for the petitioner submits that learned trial as well as revisional Court has wrongly exercised their jurisdiction by accepting the application and set aside the compromise. As per learned counsel, the application, dated 17-3-1999 filed for setting aside the compromise by Fazal Ahmad through Iftikhar Ahmad General Attorney was not correctly perused. The execution of compromise and making of the statement was admitted in the aforesaid application. Two grounds of objections were raised by the applicant for setting aside the compromise:--
(i) That the compromise was limited up to the extent of the plaintiff.
(ii) Specific Nos. Were wrongly noted.
So prayer was made to allow the submission of another compromise. According to learned counsel when the execution of compromise and making of statement was accepted by the applicant, then there was no reason to accept the application. The valuable rights having been accrued under the compromise could not be taken away by the respondents merely on the basis of plea of misunderstanding, allegedly cropped up at the time of occurrence.
3. Learned counsel appearing on behalf of the respondents has submitted that writ petition was not competent against the revisional order passed by learned Courts below to support his contention he has referred to 2000 M LD 695 (Noor Ali and 3 others v. Mst. Sayeda Parveen Iqbal and 3 others).
4. It has also been argued that findings of fact recorded by both the learned Courts below cannot be upset in this extraordinary jurisdiction. In the compromise, the land which was included in it, was not the subject-matter of the suit. Therefore the suit was not maintainable. Plaintiff had no cause of action and the property entered into the suit was situated in another district and not lying within the territorial jurisdiction of the learned Courts below. The petitioner was not an owner therefore the suit could not be filed. The compromise was accepted with undue haste. Joint statements got recorded by the parties as well as the Advocates were not legal.
5. I have heard the learned counsel for the parties and perused the record.
6. The question of controversy in the case is of vital importance as to whether compromise was effected between the parties or not? If so, as to whether it could be retracted or not? The production of compromise, the making of statement by the parties and the Advocates have not been denied, by the applicant. The only ground taken in the application for setting aside the compromise was that the plaintiff had obtained the compromise with regard to specific Killa Nos.
Himself and that the General Attorney had not completely understood the compromise due to some personal distress. With these allegations and attributions, the burden was laid upon the shoulders of Fazal Ahmad and his General Attorney, Iftikhar Ahmad to prove that there was misunderstanding due to mental stress while making statement, Muhammad Iftikhar admitted that according to decision compromise was written with regard to the land mentioned therein and the possession was also delivered to Musarrat. Upon compromise deed Exh.C.1, the signatures were admitted. In the statement, the aforesaid witness has not explained as to how, he was misled or had not been able to comprehend the transaction of compromise. The perusal of statement gives an impression that there was no suchlike mental torture, to affect adversely the capabilities of correct and true understanding. The transaction/matter settled between the parties through compromise was not so complicated as could be considered to be beyond comprehension of a prudent man. The statement of Muhammad Iftikhar has not been supported in this particular matter by any other witness. Therefore, the sole, statement of Muhammad Iftikhar cannot be accepted true. No medical certificate or evidence of any doctor of such mental disturbance was produced by the respondent to prove the position stated in the application. The applicant was bound to prove on record such mental disturbance which could be held to have affected a person's mind to such an extent as he was not able to understand the stated terms or conditions of compromise. Such evidence having lacked in the applicant's case resilience could not be allowed to agreement of compromise, which should be allowed to hold the field, and not to be defeated upon mere technicalities of smaller and simple in natures. Therefore, the executent of the compromise has not been able to prove the alleged non-comprehension of the facts due to mental stress.
7. As regards the territorial jurisdiction, suffice it to say that the lands of Rahimyar Khan District was also included in the suit. Therefore, it could not be said that the suit was not competent. As regards to the maintainability of the suit having no cause of action, the contents of the plaint have not shown to prove true the assertion of the respondent. Respondent has not been able to point out from where, it could be held that cause of action was not depicted from the contents of the plaint.
The agreement that compromise can be entered into with regard to the land which was the subject-matter of the suit and to others, the reference can be made to 1991 SCM R 235 (Suleman Khan and 2 others v. Mst. Sabaran Bibi and others). The suit can be compromised when the plaint of the plaintiff's claim may be false one. AIR (33) 1946 Patna 97 (Rameshar Mistri v. Babull Pandit)
PLD 1971 Karachi 109, (Mst. Sajida Sultana and others v. Messrs Eastern Traders and 3 others) supports this view. It was held that compromise decree cannot be refused on the ground of agreement being obtained by the fraud. In PLD 1968 Karachi 115 (Messrs Country Products Export Ltd. v. Messrs Bawany Sugar Mills Ltd.) interpreting provisions of Order XXIII, rule 3 of the C.P.C. It was held that compromise can be entered into even if the terms are outside the scope of the suit. To this rule of law, the following rulings can also be added:- PLD 1967 Dacca 155 (Sree Nalini Kanta Sen v. Babu Monaranjan -Parsad Barman).
8. So far the objection of the respondent's counsel, that writ petition is not competent against the revisional order, this argument is not sustaina:Iie in the eye of law because no such prohibition can be found from the interpretation upon the provision/wording of the Article 199 of the Constitution of Islamic Republic of Pakistan. PLD 1991 SC 65 (Hassan Din v. Hafiz Abdus Salam) and 1988 SCM R 322 Muhammad Zahoor and others v. Lal Muhammad) can be referred. So the plea of the learned counsel for the respondent that concurrent findings of fact has been rendered, therefore those are not amenable to this extraordinary jurisdiction, is not a hard and fast rule. When facts are admitted and the matter of controversy relates to the question of interpretation of law, or if the concurrent findings of facts are based upon misreading, non-reading, ignorance of material facts/documents/ evidence, " the sanctity attached to such concurrent findings of fact evaporates in the air and this Court has got full powers, complete and ample jurisdiction to examine and check the validity of such concurrent findings of facts and to pass an appropriate order according to the interest of justice.
9. Accordingly, the impugned judgment/order passed by the learned revisional Court upholding that of learned trial Court is declared to be illegal and unlawful, consequently, the compromise dated 15-3-1999 is held legal. Valid and enforceable in law.
10. With these observations/directions, the writ petition is accepted with no order as to costs.