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Civil Petition for Special Leave to Appeal No. 79 of 1968; decided on 27th June 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 23rd January 1968, in Civil Miscellaneous No. 4905 of 1967 in Second Appeal Order No. 160 of 1962).

----S. 23‑Civil suit‑Compromise between parties pending proceeding‑Object of agreement to settle not only civil dispute but to "finish" criminal cases between parties as well‑Some of offences for which criminal cases filed, not compoundable‑Compromise whether not hit by S. 23, Contract Act even though its primary, object may be to settle civil dispute---Special Leave to Appeal granted by Supreme Court to consider question.

M. Pervaiz Akhtar, Advocate Supreme Court instructed by M. B. Khizar Tamimi, Attorney Supreme Court for Petitioners.

Nemo for Respondent.

Date Of hearing : 27th June 1968.

‑This petition for leave to appeal from a judgment of a learned Single Judge of the High Court of West Pakistan arises in the following circumstances :‑

The respondent filed a suit against the petitioners for a declaration that he was the owner in possession of 95 kanals (being 1/2 share of the land measuring 190 kanals) of square No. 46 killas Nos. 1 to 25 situate in the area of Chak No. 22 S.B. A prayer for injunction restraining the defendants from interfering with his possession was also made. The suit was filed on the 5^th January 1961 and on the next day both the plaintiff' and the defendant No. 1 his brother appeared and filed a petition of compromise. The Court however before attesting the compromise suo moto framed the following issue :

Whether the consideration and object of the agreement between the parties lawful

The learned Judge found on the basis of the evidence of the plaintiff that the compromise was opposed to public policy as its purpose was to stiffle prosecution in some criminal cases pending between the parties. On this finding the learned Judge dismissed the suit without entering into the merits of it. On appeal the finding with regard to the compromise was upheld but the order of dismissal was set aside and the case was remanded for disposal. The plaintiff filed a Second Appeal. In the High Court the learned Single Judge has taken the view that the primary object of the agreement was to settle the civil dispute between the parties ; the criminal cases between them were ancillary matters and of secondary importance to the agreement and it cannot therefore be said that "the real object and the consideration behind this agreement between the parties was to stiffie the criminal prosecution pending between them and not to settle the bona fide civil dispute between the parties concerning their title to the land. On these findings it has been held that the compromise was not hit by section 23 of the Contract Act. It may be mentioned here that some of the offences for which the criminal cases were filed are not compoundable. The learned counsel for the defendants petitioners has contended that as in the compromise petition it was mentioned that the criminal cases would also be "finished", the contract was hit by section 23 of the Contract Act even though the primary object may be taken to be the settlement of the civil dispute. The question raised is of general importance and as there is no decision of this Court on this point we grant leave.

Stay already granted will continue till the disposal of the appeal.

Security in the sum of Rs. 1,000.

Leave granted.

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