Muqaddar Hussain VS Yasir Sadaat Khan

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JUDGMENT SHEET

PESHAWAR HIGH COART ABBOTTABAD BENCH

JADICIAL DEPARTMENT

R.F.A No.52-N2017.

JADGMENT

Date of hearin g 26.11.2017 .

Appellant by: Syed Sajjad Hassan Shah, Advocate. Respondent by: Mr. Shafqat Iqbal Khan Swati, Advocate.

SYED MUHAMMAD A TTIOUE "L- The appellant has challenged the validity of judgment and decree dated 09.03.2017 passed by the leamed Additional District Judge-I, Mansehra, vide which the suit of the respondent filed under Order-XXXVII of the Civil Procedure Code, 1908, (the Code) was decreed on the basis of compromise statement of the appellant recorded on09.03.2017.

2.Brief facts of the case are that respondent No.l filed a suit under Order XXXVII of the Code against the appellant before the leamed trial court for recovery of Rs. 1,05,00,000/- (one crore five lacs) on the basis of cheque issued by the appellant bearing No' 13545828 of MCB, Mansehra dated 20.12.2016, which was J dishonoured on its presentation before the concemed

Bank. The suit was filed on 08.03.2017 by the respondent and on 09.03.2017 i.e. on the very next day, the appellant appeared before the Court and submitted application for early hearing of the case on the ground of compromise.

The leamed trial court requisitioned the case file, recorded statement of the appellant and vide impugned order and decree dated 09.03.2017, decreed the suit of the respondent, hence the instant appeal.

3.Learned counsel for the appellant has

vehemently argued that the impugned order and decree dated 09.03.2017 is illegal and is against the provisions of Order XXIII Rule 3 of the Code as the leamed trial court has not recorded its satisfaction regarding the compromise. He placed reliance on "2010 SCMR 78 and

1997 SCMR 586".

4.Learned counsel appearing on behalf of the respondent has controverted the arguments of learned counsel for the appellant by vehemently arguing that in fact, after the decree passed on 09.01 .2017 in favour of the respondent, the respondent filed execution petition before the leamed executing court wherein the appellant actively participated and was also represented by a leamed counsel t

and the present appeal being an afterthought one is liable to dismissal.

5 Arguments heard and record perused with able assistance of leamed counsel for the parties.

6 Perusal of the record would reveal that respondent No. 1 brought a suit against the appellant under Order-XXXVII of the Code on 08.03.2017. On the very next day, the present appellant effected a compromise with the respondent No. I and submitted an application for early hearing ofthe suit on the ground that through a Jirga, the matter has been patched up between the parties. The said application was allowed and the statement of appellant was recorded on 09.03.2017. The learned trial court thus decreed the suit of respondent No.1 on the same day. Subsequently, respondent No.l filed execution petition before the leamed executing court on 12.04.2017 ' Again the appellant appeared before the leamed executing court and submitted application through Mr. Muhammad Qasim Jehangiri, Advocate, for the early hearing of the execution petition as well as payment of the entire decretal amount before 28.04.2017. Subsequently, appellant also filed another application on 13'05.2017 before the leamed executing court for installments of the decretal amount

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duly represented by IWs Zamwad Khan and Bakht Jamal Khan Advocates. Thereafter another application was filed by him on22.05.2017 before the leamed executing court.

Respondent No. 1 placed on file attested copies of the aforesaid documents and power of attomeys through CM No. 23 1-A/2017. Now through the instant appeal, filed on 03.06.2017 the appellant has challenged the impugned order and decree dated 09 .03.2017 , on the ground that he was pressurized, coerced and forced by the respondent for recording his compromise statement before the leamed trial court. However, before filing appeal in hand, the appellant never complained before the learned executing court regarding the alleged coercion, pressure or undue force against the respondent despite the fact that he was duly represented by leamed counsel named above. It is worth mentioning that the appellant has concealed the material facts regarding his active appearance and participation in the execution proceedings before the leamed executing court.

7.Thus in view of the above, this court is of considered opinion that the grounds taken before this court in the instant appeal after three months of the impugned order and decree are afterthought one and the same are not

tenable in view of the discussion ibid. Moreover, the case law relied upon by the leamed counsel for the appellant is distinguishable from the peculiar facts and circumstance of the instant case.

8 Hence, keeping in view the above stated facts, circumstances of the case and discussion made thereupon, this court reached at the conclusion that the impugned order and decree of the leamed trial court is based on proper appreciation of facts and law on the subject. Moreover, no illegality, irregularity or jurisdictional error has been pointed out by the leamed counsel for the appellant, warranting interference by this court. Therefore, appeal in hand being bereft ofmerits, is hereby dismissed.

ANNO

26.1t.20t8. //e/4

JUDGE

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