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Petitioner: PROVINCE OF SINDH, CHIEF SECRETARY and 7 others VS Respondent: BILQEES and 16 others
Court Name: Sindh High Court Judge(s): Muhammad Junaid Ghaffar Title: PROVINCE OF SINDH, CHIEF SECRETARY and 7 others vs BILQEES and 16 others Case No.: J.M. No,02 of 2015 Date of Judgment:2016-06-09 Reported As: 2017 YLR 1713 Result: Application dismissed
Judgment ORDER ' MUHAMMAD JUNAID GHAFFAR, J.---Through this application under Section 12(2), C.P.C., the applicants have impugned order/judgment dated 1.11.2014 and decree dated 5.1.2014 passed in Suit No, 657 of 2010 by a learned Single Judge on the Original Side of this Court, whereby, C.M.A. No, 14127 of 2014 filed on behalf of the applicant No, 2 for withdrawing the compromise application filed under Order XXIII, Rule 3, C.P.C. Has been dismissed and a compromise judgment and decree has been passed on C.M.A. No, 11576 of 2014, on the ground that the same was obtained by fraud and misrepresentation. The present J.M. Has been filed on behalf of Province of Sindh through Chief Secretary, Senior Member Board of Revenue, Secretary, Land Utilization Department and for other applicants, however, the application has been signed only by the Chief Secretary Sindh and Member Land Utilization Department. 2. Very briefly the facts of the matter are that respondents had filed a Suit bearing No, 657 of 2010 seeking several relief(s) against the applicants, wherein, a compromise application under Order XXIII, Rule 3 read with section 151, C.P.C. Bearing C.M.A. No, 11576 of 2014 was filed which was duly signed by the plaintiffs/respondents as well as by the Advocates for applicants/defendants Nos, 1 and 2 (Province of Sindh and Board of Revenue) and so also by the Secretary Land Utilization Department, Government of Sindh and Member Land Utilization, Board of Revenue Sindh. Such application was presented before the Court on 6.9.2014, whereafter another application bearing C.M.A. No, 14127 of 2014 under Section 24A of General Clauses Act, 1897 read with Section 151, C.P.C. Was filed on 22.10.2014 by the Advocate for defendant No, 2(b),/Applicants Nos, 2 and 3, whereby, the incumbent Member Land Utilization, Government of Sindh prayed before this Court to allow withdrawal of the compromise application already signed and filed by his predecessor in interest.
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Through impugned order C.M.A. No, 14127 of 2014 has been dismissed, whereas, compromise application bearing C.M.A. No, 11576 of 2014 has been allowed by passing a judgment and decree. 3. Learned Counsel for Board of Revenue has contended that though the compromise application was duly signed and filed by the then Member Land Utilization on 3.9.2014, however, at the relevant time he was not authorized to sign and file any such application as he stood transferred on 21.8.2014 and in support of such contention he has referred to Notification dated 21.8.2014 issued by Chief Secretary, Government of Sindh. He has further submitted that insofar as Board of Revenue is concerned, their grievance is that through compromise application there are certain relief(s) which could not have been granted to the plaintiffs / respondents, and therefore, their case is that the compromise is only valid to the extent of regularization of land for which the respondents have already made requisite payments. In substance the learned Counsel has argued that it is only to the extent of relief(s) which are outside the scope of the Suit, or are not permitted to be accepted by the Courts under Order XXIII, Rule 3, C.P.C., that the Board of Revenue is aggrieved in instant J.M. 4. The learned Additional Advocate General appearing on behalf of Applicant No,1 (Chief Secretary) has referred to Article 144 of the Constitution as well as Order XXVII, C.P.C. And has contended that insofar as Province of Sindh through Chief Secretary is concerned, the matter was not compromised on his behalf as no such application was signed and filed by him. He has further contended that Board of Revenue through the Secretary Land Utilization is neither competent to enter into any such compromise on behalf of Province of Sindh, nor, even otherwise a private Counsel could be engaged by them until and unless a proper approval has been sought through the Chief Secretary of the Province. Learned AAG has also referred to Suo Motu Case No, 16 of 2011 taken up by the Hon'ble Supreme Court and various orders passed thereon. He has further contended that the compromise application is even otherwise not competent in law, as it has restrained the applicants from taking any further action against the respondents pursuant to FIRs already pending, and has even granted relief to the extent of executing some orders passed earlier in Constitutional Petitions in favour of the respondents. Learned AAG has submitted that a Civil Court is not competent to stay any criminal proceedings which are to be decided in accordance with law, whereas, the entire prayer in the Suit has been incorporated in the compromise application and therefore, the same may be set aside as the judgment/decree has been obtained with fraud and misrepresentation. 5. On the other hand, learned Counsel for respondents has raised objections on the very maintainability of this J.M. By contending that the proper course available to the applicants was to challenge the judgment and decree by way of an appeal, as their application for withdrawal of compromise was dismissed through a reasoned order, whereas, admittedly no fraud or misrepresentation has been committed with the Court in this matter. Learned Counsel has contended that section 12(2), C.P.C., is not a substitute of an appeal which has otherwise become time barred in this matter. Per learned Counsel the applicants were very much aware of the proceedings including the filing of application under Order XXIII, Rule 3, C.P.C., as well as passing of the impugned judgment and decree, and therefore, present J.M. Is an afterthought as the time for filing an appeal has already lapsed. He has further contended that a compromise filed before the Court is always granted subject to the condition that it is lawful, whereas, in this matter the applicants demanded payment of extra amount for regularization of the land in question on their own and such money was deposited by the respondents immediately, and therefore, it does not lie in their mouth that on the one hand they have retained the money paid by the respondents, and on the other, are challenging the compromise application. He has further submitted that Board of Revenue under the Land Revenue Act is a statutory authority and therefore, is not required to obtain any permission from Province of Sindh, whereas, in the Suit, the Province of Sindh has even failed to file any written statement and were debarred vide order dated 13.5.2014, whereas, they
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have never been a contesting party in this matter. He has further convened that the impugned order has been passed jointly on two applications, whereby, the learned Single Judge through a reasoned order and after dismissal of withdrawal application has allowed the compromise, and therefore, the order on both these applications is to be read together. He has also referred to Rule 2(iii) of the Rules of Business of Government of Sindh Notified vide S.R.O. Dated 13.8.1988 in support of his argument that Board of Revenue is an independent department working under a full-fledged Secretary, of Land Utilization department and therefore, no formal approval is to be obtained from the Chief Secretary in such matters as contended on behalf of learned AAG. Learned Counsel has also referred to letter dated 18.8.2014 issued by the Land Utilization Department, whereby, the respondents were directed to make certain payments which was accordingly deposited on 17.9.2014, whereafter, the matter has been compromised. Learned Counsel has further contended that it is not merely the compromise application which was filed before the Court, whereas, the entire case has a chequered history and the matter was discussed and approved in various meetings of the Land Committee formed to see such matters and after detailed discussion in various meetings, the compromise was reached between the parties. Learned Counsel has further submitted that without prejudice if the Court comes to the conclusion that there are certain relief(s) on which compromise has been arrived at in respect of the criminal matters pending before various Courts, this Court is competent to modify the decree to that extent, whereas, insofar as regularization of land in question and issuance of lease in favour of the respondent is concerned, the same has attained finality on deposit of the requisite amount demanded by Board of Revenue. In support of his contention Learned Counsel has referred to the case(s) reported as Muhammad Younus Khan and 12 others v. Government of N. W.F.P. And others (1993 SCMR 618), Hatneedullah Khan v. Ghulam Rasool and 41 others (2001 SCMR 1316), Monazah Parveen v. Bashir Ahmed and 6 others (2003 SCMR 1300), Sardar Ali v. Mst. Sardar Bibi alias Sadaran (2010 SCMR 1066), Mrs. Anis Haider and others v. S. Amir Haider and others (2008 SCMR 236), Mst. Farida Begum and others v. Hafiz Muhammad Shamim and others (1997 CLC 343), Government of Sindh and another v. Ch. Fazal Muhammad and another (PLD 1991 SC 197), Pir Muhammad Azant v. Pir Azizullah and 2 others (2011 CLC 355), Subdedar Sardar Khan and others v. Muhammad Idrees and another (PLD 2008 SC 591), Muhammad Tufail and 3 others v. Muhammad Aslam Khan and another (1999 YLR 934), Syed Ameer Hussain Shah v. Syed Dilbar Hussain Shah and 3 others (2011 MLD 1956), Nasar Khan and 6 others v. Additional District Judge-I, Lakki Marwat and 76 others (2007 CLC 326), Nazir Ahmed v. Muhammad Sharif and others (2001 SCMR 46), Afghan Carpet v. Hashwani Hotels Limited and another (PLD 2009 Karachi 61), Industrial Development Bank of Pakistan v. National Engineering Works and others (1993 MLD 1344), Lal Din and another v. Muhammad Ibrahim (1993 SCMR 710), Messrs Al-Mehran Builders v. City District Government, Karachi (2006 CLC 373), Messrs K. M. Enterprises v. City District Government, Karachi and 2 others (2008 YLR 2053), Messrs Zia Abbas & Sons (Pvt.) Ltd. v. Karachi Development Authority (KDA) and 2 others (PLD 2004 Karachi 87), The Commanding Officer, National Logistic Cell and another v. Raza Enterprises and others (2003 CLC 719) and Gahi alias Gada Hussain and others v. Shaman and 7 others (PLD 2006 Karachi 588). 6. I have heard all the learned Counsel as well as learned AAG and perused the record. The precise facts have already been stated herein above in that the respondents had filed a Suit for Declaration, Injunction and Directions in respect of some anonymous complaints against them on the basis of which various reports including report dated 11.3.2009 was impugned with a further declaration to the effect that the respondents are the lawful and genuine allottees and in possession of 9-08 Acres of Land in Naclass 166 Survey No, 328 Deh Safora situated in Gulshan-e- Iqbal Town, Karachi in consequence of their lawful claim and in terms of order dated 6.5.1979 passed in C.P. No, 524 of 1974 by this Court. Despite issuance of summons and repeated chances, it appears to be an admitted position that insofar as Province of Sindh (Applicant No,1) is concerned,
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they had not filed any written statement in the Suit and were debarred on 13.5.2014, whereas, the defendant No, 2(a) and (b) i,e, the applicants Nos, 2 and 3 (Board of Revenue and Member Land Utilization, Government of Sindh) had filed their written statements. During pendency of the Suit a compromise application was jointly filed on behalf of the Respondent/plaintiffs and Senior Member, Land Utilization, Board of Revenue on 6.9.2014 and before any order could be passed on such compromise application, another application was filed by the incumbent Member, Land Utilization, Board of Revenue requesting the Court to allow withdrawal of the compromise application. Through impugned order, the withdrawal application has been dismissed, whereas, judgment and decree in terms of compromise application has been passed by a learned Single Judge of this Court. 7. It may be observed that by far now it is a settled principle of law that an application under section 12(2), C.P.C. Is not a substitute of an appeal, whereas, an application under section 12(2), C.P.C. Is only competent in case a fraud or misrepresentation is committed with the Court. On perusal of facts of the instant matter, it does not appear to be a case of any fraud or misrepresentation with the Court. The applicants specially Applicants Nos,2 and 3 were well aware that their predecessor in interest had filed a compromise application before the Court, and for this very reason the incumbent Member, Land Utilization, Board of Revenue, had filed an application for withdrawal of the compromise. Therefore, in any manner it cannot be held that the applicants had no knowledge of any such proceedings pending before the Court. Perusal of the impugned order further reflects that such order was passed in presence of the applicants and their Advocates, therefore, even otherwise it cannot be said that when the order was passed, they were not present before the Court or they did not had any knowledge about such order. In fact it does not appear to be the case of the applicants that any fraud or misrepresentation was committed while obtaining the impugned judgment and decree, but according to them, the compromise was entered into, on the bases of an unlawful agreement. It is also pertinent to observe that both the applications were disposed of and decided by the learned single Judge through a common order, and the withdrawal application filed on behalf of the applicants was dismissed on merits by the Court, and only thereafter, the compromise application was allowed by passing the impugned judgment and decree. In the circumstances, it was always open to the applicants to prefer an appeal against the said order, whereby, their request for withdrawing the compromise application had been declined. In fact there are two aspects of the order impugned, one which relates to dismissal of their withdrawal application, and the other, whereby, the compromise application has been accepted. Both are independent in nature and have no nexus with each other insofar as merit of the case is concerned. There could be a case on behalf of the applicants, that insofar as the compromise application and its grant is concerned, the Court ought to have examined the contents of the application and to see that as to whether, it is consistent and in accordance with the provisions of Order XXIII, Rule 3, C.P.C. Or not. Whereas, insofar as dismissal of the withdrawal application is concerned, the same under no circumstances can be impugned through an application under Section 12(2), C.P.C. Therefore, insofar as the first part of the order, whereby, withdrawal application was dismissed is concerned, this J.M. Under section 12(2), C.P.C. Is misconceived as the applicants were required to file a proper appeal as provided in law by impugning the said findings on merits of the case. 8. Coming to second issue that as to what is the duty of the Court while hearing and allowing a compromise application filed under Order XXIII, Rule 3, C.P.C. Is concerned, in this regard it would be advantageous to refer to the provision of Order XXIII, Rule 3, C.P.C. Which reads as under:-- "3. Compromise of suit. 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
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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." (Emphasis supplied) 9. Perusal of the aforesaid provision reflects that 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. The words which are to be kept in mind is that the Court should be satisfied that the Suit has been adjusted wholly or in part by any "lawful agreement or compromise" meaning thereby, that the agreement which has been placed as a compromise before the Court, ought to be lawful and not otherwise. This would impliedly mean that a Court in terms of Order XXIII, Rule 3, C.P.C. Is only competent to allow a lawful agreement to be entered into a compromise by passing a decree to that effect, and if any agreement which has been placed before the Court as a compromise, is not lawful, then the Court ought not to pass any judgment or decree to that effect, or even if such judgment and decree has been passed, the same to the extent of any unlawful agreement, cannot be executed. To see as to whether any agreement is lawful or not reference would be required to be made to sections 23 and 65 of the Contract Act, 1872 which reads as under:-- "23. What considerations and objects are lawful and what not. The consideration or object of an agreement is lawful, unless---it is forbidden by law; or ' Is of such a nature that, if permitted, it would defeat the provisions of any law; or ' Is fraudulent; or ' Involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy. ' In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void. 65. Obligation of person who has received advantage under void agreement or contract that becomes void. When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person from whom he received it." 10. Perusal of the aforesaid provision of Section 23 reflects that if the consideration or object is unlawful, and it is of such nature that, if permuted, it would defeat the provisions of any law, or, involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy, whereas, the agreement of which the object or consideration is unlawful, to that extent such agreement is void. Similarly section 65 provides that when the agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract, is bound to restore it or to make compensation for it to the person from whom he has received it. Therefore, the agreement which was placed before the Court has to be examined in the context of both these provisions of the Contract Act. It would be advantageous to refer to the contents of the compromise application filed by the parties before the Court which reads as under:-- "a) It is agreed by both the parties that the entire proceedings initiated by the Defendants No. 1(b) and 2(b) on the basis of a pseudonymous complaint from Mohammad Obaid (Defendant No, 4) without disclosing his proper identity and address, are nullity in the eyes of law as well as an extreme deviation and violation of the rules of business of the Government of Sindh, as well as the rules of natural justice, hence the report submitted by the Defendant No,1(b) dated 11.3.2009 as well as the approval given thereto by the Chief Minister Sindh, and the subsequent public notice published in the newspapers on 24.4.2010 and 25.4.2010 by Defendant No,2(b), are of no legal effect
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and not binding upon the Plaintiffs or their predecessors or successors in interest, and the same is hereby declared as void ab-initio. b) It is agreed that the defendant No,1(a)'s report dated 11.3.2009 submitted by the Defendant No,1(b) shall be declared illegal, void ab-initio and the same is hereby cancelled for all times to come with further directions to the remaining Defendants, their subordinates, attorneys, officials, not to take any adverse action pursuant to the aforesaid report dated 11.3.2009 including but not limited to lodging of any FIR or any NAB reference or cancellation of the land measuring 9 acres 08 ghuntas allotted to Plaintiffs and now being occupied by the aforesaid purchasers/builders as Plots No,328/ A, 328/B, 328/C, 328/D, 328/E and 328/F of Deh Safooran, who has already sold out the same to different allottees according to their respective shares. c) It is further agreed that the letters dated 14.10.2009 obtained by the official Defendants under coercion from the aforesaid purchasers/ builders, is nullity in the eyes of law and of no legal effect and the same is hereby cancelled and it is declared that the Plaintiffs or the aforesaid purchasers/ builders are not liable to pay any additional amounts towards the aforesaid suit land except an amount of Rs,1,99,66,000/-. d) It is further agreed between both the parties that the Plaintiffs are the lawful, genuine allottees in possession of 9-08 acres of land in Naclass No,166, Survey No,328 Deh Safooran, situated in Gulshane-Iqbal Town, Karachi, in consequence of the lawful claim and in terms of the Order of the Hon'ble High Court dated 6.5.1979 passed in C.P. No,254/74, hence the Defendants or any other authority including but not limited to NAB has no lawful right or jurisdiction to question the legality of the title of the Plaintiffs over the aforesaid land or to take back the same from the Plaintiffs or their successors-in-interest. e) It is declared that the so-called alleged suo motu proceedings under section 164 of the Sindh Land Revenue Act, 1967 initiated by Defendant No,2(b) in respect of alleged "fraudulent insertion of entries" are also illegal, uncalled for and should be cancelled/ withdrawn by declaring that the title of the Plaintiffs over the aforesaid land is lawful and genuine and cannot be questioned by any one including the Defendants. f) It is further agreed that the Defendant No,5 Sub-Registrar Gulshan-e-Iqbal Town, Karachi, shall immediately execute the sublease deeds in favour of Abdul Majeed Suleman of the flats/shops constructed on Plots No,328/A; 328/B, 328/C, 328/D, 328/E and 328/F of Deh Safooran as and when submitted by the said Abdul Majeed Suleman for registration according to law and on the permissions already accorded by the competent authorities regarding the aforesaid two projects. g) It is further agreed between the parties that the Defendants will allot and give possession of remaining balance land out of 29 acres and 17 ghuntas as ordered by the Hon'ble High Court vide order dated 6.5.1979 passed in C.P. No,254/74, as well as to further allot and give possession of at least 58-1 acres of urban land in Karachi due to be allotted to the predecessor-in-interest of the Plaintiffs namely Abdul Majeed Suleman in terms of verified claim bearing Registration No,4653/V dated 5.10.1961 under Schedule IV of the Registration of Claims Act, 1956 as well as U.R.V. Bearing Book No,283, Form No,8475, dated 5.10.1961. h) It is agreed between the parties that the Defendants- will not take any adverse action with regard to the lawful ownership and possession of the Plaintiffs over the aforesaid land on the basis of the report of Defendant No,1(b) dated 11.3.2009, as well as the Defendants will not take any other steps including registration of FIR, cancellation of the land and any other action detrimental to the interests of the Plaintiffs as well as the allottees of the two projects of the aforesaid purchaser/builders, pursuant to the aforesaid report of Defendant No,1(b). i) The High Court and its earlier judgment by using the word "At least" 25 Acres out of 58.1 Acres is not restricted or put any embargo on the allotment of land against the remaining unutilized total units 2716 equivalent to 22.63 acres.
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j) The allotment made Land Utilization Department up to 25 Acre in Karachi is intact and undisputed and it will remain on the Khata of claimant. k) Remaining P.I. Units 2716 units equivalent to 22.63 Acres may be allotted by the government to the claimant. 1) Fresh Form-II and NOC of sale shall be issued by the Board of Revenue in the name of Abdul Majeed Suleman. m) Proceedings if any, inquiry, investigation initiated by the NAB Authorities on the basis of the report dated 11.3.2009 by Defendant No,1(b). Shall be declared null and void and the NAB is hereby restrained not to file any reference against the Plaintiffs as there is no loss to the public exchequer. n) It is…
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