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Civil Revision No.172 of 1978/BWP, heard on 30th May, 1984.

---S. 115--Specific Relief Act (I of 1877), S. 42--Revisional jurisdiction, exercise of--Compromise between parties (agnate brothers) resulting in consent decree in favour of petitioners in previous suit and an agreement between parties whereby parties undertook to transfer one-fourth of estate inherited from their father to minor child of his pre-deceased son--Petitioners failing to fulfil their part of agreement and denying execution of agreement--Both Courts below concurrently holding that agreement was executed by parties--Entitlement of petitioners for exercise of discretionary jurisdiction of High Court--Where petitioner came to Court with unclean hands and soiled conscience, he would not be entitled to the aid of Court calling for exercise of discretionary jurisdiction- Judgment of Appellate Court neither suffered from any jurisdictional defect nor was violative of any legal provision calling for interference by High Court in revisional jurisdiction--Revision being devoid of merit was dismissed.

Sh. Hakam Ali for Petitioners.

Sardar Ashiq Muhammad Khan for Respondent.

Date of hearing: 30th May, 1984.

One Allah Bakhsh had two wives, namely, Mst. Ghulam Jannat and Mst. Ghulam Fatima. From Mst. Ghulam Jannat he got two sons, namely, Usman and Karim Bakhsh, petitioners and from Ghulam Fatima also he had two sons, namely, Shahroo, respondent and Muhammad Ramzan. Muhammad Ramzan pre-deceased his father leaving behind his minor son Nabi Bakhsh. Mst. Ghulam Fatima inherited from her mother Mst. Sabhai 120 Kanals 6 Marlas and 6 Sarsahis of land in Khata Nos. 91, 93 and 96 of village Hyderpur as reflected in Jamabandi for the year 1957-58. On her death the land was mutated in favour of Shahroo, respondent, and his deceased brother's successor-in-interest Nabi Bakhsh, etc., vide Mutation No. 292, dated 27-9-1958. Usman and Karim Bakhsh, petitioners, challenged this mutation through Civil Suit No. 12 filed against Shahroo, respondent and other share-holders alleging that Mst. Sabhai in her life time had through Tamleeknama, dated 11-5-1958 transferred 100 Kanals 6 Marlas and 6 Sarsahis of her land to the two petitioners, Shahroo respondent and Muhammad Hamzan in equal shares, therefore, Mutation No. 292, dated 27-9-1958 should be declared as illegal and ineffective qua the rights of the petitioners. Shahroo, etc., contested the suit. On 30-5-1964, however, in pursuance of a compromise Shahroo conceded that the suit be decreed to the extent of 42 Kanala of land in favour of the petitioners and accordingly consent decree Exh.P.3 was passed on 30-5-1964.

2. On 3-9-1970 i.e., after 6 years of the passing of decree Exh.P.3 Shahroo, respondent, brought a suit against the petitioners for declaring the decree Exh.P.3 to be illegal and inoperative as having been obtained fraudulently because during the proceedings of suit No.12 the petitioners made him believe by executing agreement Exh.P.1 (on the very day the said suit was compromised) that they shall transfer 1/4th of land inherited by them from their father (Allah Bakhsh) in favour of Nabi Bakhsh son of their pre-deceased brother Muhammad Ramzan who was a minor. This suit was contested so much so that even the execution of Exh.P.l was denied by the petitioners. The following issues were framed and tried, besides the relief:-

(1) Whether the suit is not maintainable in its present form O.P. D.

(2) Whether the suit is within time O.P.D.

(3) Whether the plaintiff has got locus standi to bring the present suit

(4) Whether the decree regarding the suit land (dated 30-5-1964) being result of fraud is void and ineffective upon the plaintiff's right

3. Issues Nos. 1 and 2 were not pressed before the trial Court. On consideration of the material on record it was held that no doubt writing Exh.P.1 was executed by Usman, petitioner, but it did not contain a condition that if Usman failed to comply with its terms the decree dated 30-5-1964 would be deemed as null and void hence the decree was independent of agreement Exh.P.l. It was further observed that Nabi Bakhsh being the beneficiary under Exh.P.1 had his own independent cause of action against Usman, petitioner, and could ask for the specific performance of the agreement but he had not done so and that Shahroo, respondent, had no locus standi to file the instant suit. Consequently, learned trial Court dismissed Shahroo's suit with costs vide judgment dated 31-7-1977. Feeling aggrieved, he filed appeal before the District Judge who came to the conclusion that Shahroo, respondent, appeared to have conceded suit No.12 in favour of the petitioners to the extent of 42 Kanals of land under the belief that they would get mutated 1/4th of land inherited by them from their father (Allah Bakhsh) in favour of Nabi Bakhsh who being son of Muhammad Ramzan their pre-deceased brother had been excluded from inheritance. He further held that the petitioners not only failed to act according to the promise as mentioned in Exh.P.1 but also denied its execution -----------which meals that they intended "to get their suit decreed and let Shahroo and for that matter Nabi Bakhsh be in the wilderness". He, therefore, concluded that the intention of the petitioners right at the time of execution of Exh.P.1 was not to perform their part of the promise so the fraud was more than proved.

4. Dealing with the argument that agreement Exh.P.l could be got enforced by Nabi Bakhsh by filing a separate suit for specific performance against the petitioners and that Shahroo, respondent, had no locus standi to file the instant suit, learned District Judge observed that since Exh.P.1 and the reciprocal deed of compromise which resulted in passing of the consent decree Exh.P.3 in Suit No. 12 were mutually executed by the present parties, therefore, had Nabi Bakhsh brought a suit for specific performance, the petitioners could well have raised a defence that there was no contract of any sort between the petitioners and Nabi Bakhsh, hence the same was unenforceable. He, therefore, held that parties to Suit No.12 as well as to the agreement Exh.P.1 being same and if one of them obtained decree due to fraud then the other effected party (Shahroo respondent) was well within its right to file a civil suit asking for setting aside such decree. In this view of the matter, learned Appellate Court reversed the finding of trial Court on issues Nos. 3 and 4 and declared that the judgment Exh.P.4 and decree Exh.P.3 were obtained by fraud and restored Civil Suit No.12 of 1964 titled "Usman and Karim Bakhsh v. Shahroo and others to the trial Court to be tried onwards from the stage where it was when the impugned decree was passed. Feeling aggrieved, the petitioners have come in revision before this Court.

5. I have given careful consideration to the lengthy arguments addressed by learned counsel for both the parties in the light of the record perused by me.

6. In my estimation learned District Judge has dealt with the contentions of the parties keeping in view the relevant law and equitable and just considerations. The petitioners as it appears from record had brazenfacedly denied the very execution of agreement Exh.P.l which has otherwise been proved on record. It means that the petitioner came to the Court with unclean hands and soiled conscience and are thus not entitled to the aid of -the Court calling for exercise of discretionary jurisdiction. The fraud of the respondents is apparent on the face of the record as both the Courts below have found it as a fact that Exh.P.1 was executed by the petitioners in consideration for obtaining consent of the respondents in Suit No.12 which was decreed in consequence thereto and 42 Kanals of land was given to the respondents. In this context the finding of learned District Judge is unexceptionable. Even otherwise the judgment of learned District Judge does neither suffer from any jurisdictional defect nor is violative of any legal provision calling for interference by this Court.

7. Resultantly, this petition is dismissed. There is, however, no order as to costs.

A.A. / U-3/L Petition dismissed.

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