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Civil Petition for Special Leave to Appeal No. 227 of 1979, decided on 9th February. 1986.
(From the judgment/order of the Lahore High Court, Lahore, dated 26th February, 1979, in Civil Revision No. 1058 of 1978).
Constitution of Pakistan (1973)‑‑
‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), C XVI, R.1‑ Respondents‑plaintiffs failing to file list of witnesses in accordance with Order XVI, R.1, Civil Procedure Code‑‑Trial Court dismissing suit on such default in appeal before District Court, counsel for parties entering into a comprise which was not with regard to application or otherwise of O.XVI, R .1, civil Procedure Code, or its consequences but with regard to entire merits of case‑‑Petitioner‑defendant challenging judgment of District Judge based on such compromise on ground that compromise was confines only to question raised with regard to application of O.XVI, R,1, Civil procedure Code, and that it could not have been decided with regard to merits of case‑‑High Court, after examining all circumstances of case concluding that petitioner‑defendant in fact compromised subject matter of suit‑‑Held, parties having entered into solemn compromise, there exist no justification for District Judge to remand case to Trial Court--Leave to appeal a against judgment of High Court refused.
Abdul Aziz Qureshi, Advocate Supreme Court for Petitioners.
Nemo for Respondent
Date of hearing 9th February, 1986.
.‑‑Leave to appeal has been sought from judgment, dated ss‑2‑:1979 of the Lahore High Court; whereby a Civil Revision filed by the petitioner‑side arising out of a suit settled through compromise, was dismissed.
2. Respondents side were the plaintiffs. According to the learned counsel they did not file the list of witnesses in accordance with Order XVI, Rule 1. The learned counsel further stated that the learned trial Court instead of dealing with the merits of the case dismissed the respondents' suit on account of the said default. The respondents filed an appeal before the District Judge where the learned counsel for the parties entered into a compromise which the learned counsel explained was not with regard to the application or otherwise of Order XVI, Rule 1 or its consequences, but with regard to the entire merits of the case. The petitioners challenged the judgment of the District Judge on the ground that the compromise could be confined only to the question raised in the First Appeal, namely, the implication of Order XVI, Rule 1 and that it could not have been decided with regard to the entire merits.
3. The High Court after examining all the circumstances of the) case including that the petitioners had in fact compromised the subject matter of the suit; that one of them was present at the time the order of compromise was passed and did not raise any objection in this behalf; that one of them had appended his signature on the compromise deed; that the circumstances of the case did not support the petitioners' plea that the thumb‑marks were obtained on a blank paper; and lastly, that the powers of attorney (the Wakalatnamas) of both the lawyers appearing for the parties sufficiently showed that they were authorised by the) parties to compromise the subject‑matter of the suit. Despite this the learned counsel insisted that the learned District Judge should have allowed the appeal on limited questions relating to the list of witnesses and should have remanded the case for further trial on merits.
4. In view of the findings by the High Court noted above it would have been a futile exercise. The parties having entered into a solemn compromise, there was no justification for the District Judge to remand the case to trial Court. This petition has no force and is according dismissed.
M.Y.H. Petition dismissed.
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