2015 C L C 1312

2015 C L C 1312

[Gilgit-Baltistan Chief Court]

Before Muhammad Alam, J

NADEEM and others----Petitioners

versus

ZAMINDARAN BIRGAL through representatives and others----Respondents

Civil Revision No.30 of 2013, decided on 27th February, 2015.

(a) Civil Procedure Code (V of 1908)---

----O. I, R. 8 & S.12(2)---Representative suit---Compromise and ex parte decree---Scope---Compromise decree could be passed or a compromise could be made rule of the court only when all the parties to the suit had concurred to said compromise---Court had no power to give binding force to a compromise if any or few of the persons to a case or suit did not concur to any compromise when suit was of representative nature or character---Compromise decree and an ex parte decree on the basis of ex parte proceedings were quite different, two things and joining of the two were in contradiction of each other---Compromise decree would cover all the suit land and after decreeing the suit on the basis of compromise nothing would remain in the suit property for an ex parte decree---Ex parte decree passed against some of the defendants in representative suit was wrong practice---Compromise decree could not be treated operative against the defendants who were proceeded against ex parte---Trial Court had omitted to discuss the evidence of the parties while passing the impugned order---Appellate Court had failed to discuss all issues in the light of evidence of the parties---Omission of Appellate Court for not giving its findings on all issues was a material irregularity--Impugned orders were set aside and parties were directed to join trial proceedings of the suit from the stage where it was given up and Trial Court was directed to resume the trial of said suit from the same stage---Revision was accepted accordingly.

(b) Civil Procedure Code (V of 1908)---

----O. I, R. 8---Representative suit---Scope---Trial courts were bound to ascertain the capacity/powers of the representatives of the parties in representative cases.

(c) Civil Procedure Code (V of 1908)---

----S. 12(2)---Application under S.12(2), C.P.C.----Treatment to be given to such an application by the court---Scope--- Application under S.12(2), C.P.C. normally had to be given treatment of a suit by the courts and failure of the Trial Court not to discuss the evidence of the parties was a material irregularity.

            Latif Shah and Muhammad Hussain Shehzad for Petitioners.

            Saeed Iqbal for Respondents.

            Date of hearing: 27th February, 2015.

ORDER

            MUHAMMAD ALAM, J.--- Order dated 7-5-2013 of learned District Judge Ghizer, passed in CFA No.54/2012 and order dated 25-9-2012 of the Civil Judge Gahkuch/Punial passed in C.Misc. No.22/2007, have been challenged through this revision petition.

2.         Respondents filed a suit (Civil Suit No.6/2001) as representative suit, in the trial court. On 16-8-2004, the then trial court passed decree/judgment in the light of compromise between the parties to the said suit. Through a petition (C.Misc. No.22/2007), the petitioners challenged the said decree and through order dated 25-9-2012, the learned trial court dismissed the said application of petitioners. Feeling aggrieved from the same petitioners filed appeal (CFA No.54 of 2012) entailing to the impugned order, hence this petition.

3.         I have heard parties at length and have gone through the record of the case. In the peculiar circumstances of case in hand, admitted state of affairs between parties is very important for coming to a correct conclusion of the case. On 16-8-2004, during trial proceedings of the case in hand, parties to case presented a compromise. It is very important to note that petitioners are among the contesting defendants of the case (C.S. No.6/2001) as residents of Golodas. The said defendants, i.e., petitioners, appointed three persons as their attorneys for contesting the above referred suit and two out of them joined the compromise while the third, Mr. Muhammad Wali, did not, although defendants who appointed the three attorneys empowered all the three for affecting any compromise etc. This very fact is admitted and is important. Moreover, it is also not disputed that petitioners are residents of Golodas, Tehsil Punial, and were in that capacity arrayed as defendants to the suit. Mr. Zahir Shah Advocate has joined the compromise dated 16-8-2004, the suit compromise, as party to the case but on ex facie perusal of the said compromise, it is evident that the said Advocate did not sign the same although order sheet of the said date shows presence of the said Advocate. It is also admitted that the learned trial court, before passing order dated 16-8-2004, on the basis of compromise, had proceeded ex parte against defendants No.11 and 13 to 21 and while passing order dated 16-8-2004, the learned trial court passed ex parte decree against said defendants and a decree in the light of compromise against rest of the defendants to the said suit. So the three important questions worth debate are:---

(a)        What is the binding force of a compromise not signed by the said Advocate (Mr. Zahir Shah)?

(b)        What are the legal effects of non-joining the compromise by one of the attorneys of petitioners out of three?

(c)        Whether ex parte decree against defendants Nos.11 to 13 and 21 of the said suit is correct in the eye of law in the attending circumstances of the case?

4.         Yet another important aspect of the case is that I have gone through the Wakalat Nama of Mr. Zahir Shah Advocate with the assistance of learned counsel for parties. The Wakalat Nama of Mr. Zahir Shah Advocate shows that Mr. Faqir Shah, one of the attorneys for petitioners, has appointed the said advocate as counsel. So the two other attorneys even did not appoint the said advocate as counsel. In my opinion, in these circumstances Mr. Zahir Shah Advocate had no power, whatsoever to join compromise proceedings particularly he also, admittedly has not signed the compromise. No inference of joining the compromise proceedings can be drawn merely because the said advocate was present in the court while the compromise was being attested by the learned trial court.

5.         The compromise dated 16-8-2004 is not legal once it is admitted that the third attorney of the plaintiffs to the said suit (Civil Suit No.6/2001) did not join the compromise proceedings. In representative cases trial courts are bound to ascertain the capacity/powers of the representatives of the parties. In my opinion, in the case in hand, the learned trial court has committed material irregularity by neglecting the absence of one of the attorneys of the set of defendants, i.e., residents of Golodas Punial, particularly where such attorneys were appointed by the representatives of Ehlian-e-Golodas, the contesting defendants to the said suit. A compromise decree can be passed or a compromise can be made rule of the court, only when all the parties to the suit concur to said compromise. A court has no power to give binding force to a compromise, if any or few of the persons to a case or suit did not concur to any compromise particularly where the suit is of representative nature or character, as is in the case in hand.

6.         An important academic question debated before me was the competency of order/decree dated 16-8-2004, passed against defendants Nos.11 and 13 to 21 of the said suit in the attending circumstances of the case. In the opinion of learned counsel for respondents, this action of the learned trial court was correct while learned counsel for petitioners opposed the same. Counsel for parties did not cite any case law on this aspect of the case. A compromise decree and an ex parte decree, on the basis of ex parte proceedings, are quite different two things and joining of the two, not only does not make any sense but are obviously in contradiction of each other also. Obviously, the compromise decree covers all the suit land and after decreeing the suit on basis of compromise, nothing remains in the suit property for an ex parte decree. So the ex parte decree passed against defendants Nos.11 and 13 to 21 is a wrong practice. It is also important to note that the compromise decree also cannot be treated operative against the said defendants to the said suit. So this very action of the learned trial court is also a material irregularity. Learned first appellate court has failed to note these irregularities in the order of learned trial court.

7.         In the case in hand, it is very important to note that while passing impugned order, the learned trial court has omitted to discuss the evidence of the parties. Moreover, the learned first appellate court has also omitted to discuss all issues in the light of evidence of parties. It is not disputed that a petition under section 12(2) is normally given the treatment of a suit by the courts and failure of the trial court not to discuss the evidence of the parties is a material irregularity. Likewise, omission of the first appellate court for not giving his findings on all issues is also a material irregularity.

8.         In these circumstances I allow this petition, set aside impugned order as well as order dated 25-9-2012 of the trial court. Petition (C.Misc. No.22/2007) of the court of Civil Judge first class Punial Ishkoman accepted throughout. Order dated 16-8-2004 passed in C.S. No.6/2001 stands set aside. Parties are directed to join trial proceedings of C.S. No.6/2001 from the stage where it was given up and trial court to resume the trial of said suit from the same stage. Petition allowed. Parties to bear their own costs. This file be consigned to record.

ZC/76/GB                                                                                            Revision allowed.