P L D 1967 Karachi 795 (PLP)

(6) Whether the defendants had committed breach of their agreement with the plaintiffs and to what effect? (7) Whether the plaintiffs did not want to give customary and usual advances in terms of compromise agreement and thus committed breach of the said agreement. (8) Whether the present suit is barred? (9) Whether there is no cause of action? (10) Whether the suit is undervalued? (11) Is the suit as framed maintainable? (12) Whether the defendants are entitled for the special costs? (13) To what relief the plaintiffs are entitled? My findings and reasons are as follows :‑

5. Issue No. 1.‑Certificate regarding the registration of firm has been produced and it is Exh: 6/1. In view of this fact this issue was not pressed by the defendant and accordingly it does not arise.

6. Issues Nos. 2, 3 and 4.‑While narrating the facts of this case I have referred to the pleas raised by both the parties in this respect. Admitted position is that there is no writing about this agreement and it was argued before me on behalf of the plaintiff that it was not necessary under any law that such an agreement be put in writing. He had referred me to several circumstances which strongly support the case of the plaintiff. Suit 24/60 was filed between same parties in this Court and it had resulted into compromise decree. Plaint in that suit is Exh. 6/18, while the written statement filed by the same defendant is Exh. 6/20. Application filed by the parties under Order XXIII, rule 3 is Exh. 6/19 and the order of the Court on it is Exh. 6/21. It was followed by a consent decree which is Exh. 6/24. Reliance was also placed on behalf of the plaintiff on receipt Exh. 6/2 for Rs. 20,000 and the entries from Khata are Exh. 6/3 and 6/4. No evidence has been adduced by the defendant to rebut all this evidence. Exh. 6/22 is the letter addressed by the defendant to the plaintiff on 9th October 1959. Its perusal shows that defendant has not referred to its plea now raised by it and shown in para 3 of its written statement viz: previous accounts and damages payable by the plaintiff to the defendant. As regards the two transactions entered into By the plaintiff for. and on behalf of the defendant I was referred to telegrams and letters which are Exhs. 6/5 to 8 in respect of first transaction and Exhs. 6/10 to 15 Entries from Khatas are Exhs. 6/9 and 6/14. Defendant had made no reply to these telegrams. Even after the defendant was served with a notice Exh. 6/23, the defendant continued to remain silent and did not protest or deny these transactions. Exh. 6/12 is the postal acknowledgment receipt and is signed by one Faiyaz Ahmed on behalf of the defendant. He has not been produced to deny this signature. When Muhammad Saeed Exh. 7 was examined about this document he bad stated that "I can identify the signature of our Munshi Faiyaz Ahmed. I see Exh. 6/12 and say that the signature is not clear and hence I cannot say if it is in the hand of bur Munshi Faiyaz Ahmed." His contention that the signature on Exh. 6/12 `it is not clear' is not correct. It is quite legible and anybody can read it easily. The defendant had also referred me to the evidence of Muhammad Ashraf Exh. 6 who was examined on behalf of the plaintiff: He has admitted in his cross examina tion that he was present in the office when Said and Jamil on behalf of the defendant had talks with Mian Nur Ahmed of the plaintiff's firm. Mere fact that this Nur Ahmed has not been examined by the plaintiff will give no rise to presumption against the plaintiff, in view of all the evidence discussed above. For all these reasons I decide these issues in favour of the plaintiff.

7. Issue No. 5.‑The burden of proof was upon the defen dant and it has failed to discharge it. No evidence has been led to prove it. I have already referred to the documents in connection with the settlement arrived at between the parties in their previous suit No. 24/60. All these allegations do not appear in Exhs. 6/l9 and

21. On the contrary both these documents fully support the case of the plaintiff: This issue is therefore decided against the defendant.

8. Issues Nos. 6 and 7.‑It was argued on behalf of the defen dant that no notice was served by the plaintiff on the defendant for production of railway receipts. It was further urged before me that the plaintiff did not examine the material witness, namely, Nur Ahmed, and lastly, that the evidence of the accountant was neither sufficient nor satisfactory. Exh. 6/19 is the application filed by the parties in their previous Suit No. 24/60. They had settled all their disputes at Rs. 12,000 and the consideration for the settlement was that defendant undertook to sell 1,000 cotton bales through the plaintiff' for the cotton season 1961‑

62. This explains the objection raised on behalf of the defendant why the claim of Rs. 20,000 of the plaintiff was settled at Rs. 12,

000. Sale of 1,000 bales of cotton during the cotton season 1961‑62 would have earned commission for the plaintiff and it would have added to the sum Rs. 12,000 to complete its claim of Rs. 20,

000. Apart from it, goodwill of the defendant was retained when these disputes were settled in the previous suit. For all these reasons I decide these two issues against the defendant.

9. Issues Nos. 8 and 9.‑Stand taken on behalf of the defendant is that the present suit is based on the same cause of action. Hence it is barred and there is no fresh cause of action. In support of this argument it was urged that the previous suit ended in consent decree after all the disputes were settled between the parties and as such this question is directly and substantially the same in both the suits, and therefore this suit is barred as res judicata. I find very little force in this argument. Compromise decree is a contract between the parties and its breach would give cause of action to the other party to approach the Court to seek remedy. "Whether a subsequent suit is barred by reason of Civil P. C. section 47 depends upon the existence of a decree which is executable for the purpose of the reliefs sought to be enforced in the subsequent suit." This view is expressed in a case reported as Arunachallam v. Sethupathi (A I R 1925 Mad. 1260). It was further held that :‑ "Whether an earlier contract is superseded by a late contract, on account of a certain alteration, depends on whether the parties intended to rescind the original contract. It is possible to vary a term of an original contract by a subsequent parol contract in such a way as to keep alive the original contract. Where the decree was passed on a compromise, it was held that the decree and not the compromise in the decree bound the parties especially in view of the parties' intention indicated .in the compromise preceding the decree itself, that a "decree" should be obtained on the basis of the compromise." The Patna High Court as reported in C. J. Smith v. A Kenny (A I R 1924 Pat. 231) has held that :‑ "Compromise decree is but a contract with superadded command of a Judge. Same view is expressed by this High Court in another case reported as Jahuri Lal v. Kandhai Lal (A I R 1935 Pat. 123), and other cases are reported as Hiralal v. Durga Bai (A I R 1937 Nag. 413), Mitha v. Ramal Dass (A I R 1937 Lah. 828) and A I R 1957 All.

287. I therefore, agree with the plaintiff that it has an independent cause of action‑ due to breach of this compromise decree. For all these reasons I decide both these issues in favour of the plaintiff.

10. Issues Nos. 10 and 11.‑Contention of the defendant is that plaintiff seeks remedy for setting aside the consent decree by implication and further that no relief regarding declaration has been sought by it. Apparently both these arguments are without any force. In view of the facts stated above it is not necessary for the plaintiff to seek declaratory relief. Breach has been com mitted by the defendants in terms of the consent decree and it gives independent cause of action to the plaintiff who consequently has filed the present suit for recovery of money. Both these issues are therefore decided against the defendant.

11. Issues Nos. 12 and l3.‑No case is made out for grant of special costs to the defendant in view of my findings on previous issues. Suit is decreed in favour of the plaintiff as prayed. Decree shall follow for Rs. 26892‑10‑9 with costs and running interest at 6 % per annum from the date of suit till the date of realisation. K. B. A. Suit decreed.