2009 SCMR 1268 (PLP)

JAVED IQBAL, J.

This Civil Petition for leave to appeal is directed against the judgment dated 15-7-2008 passed by learned Single Judge in High Court of Balochistan, Quetta whereby the revision petition preferred on behalf of Dad Muhammad (respondent) has been accepted by reversing the judgment and decree dated 28-2-2006 passed by Majlis -e-Shoora, Zhob whereby appeal filed on behalf of petitioners was allowed.

2. Precisely stated the facts of the case are that Dad Muhammad (respondent/plaintiff) filed a suit for specific performance with the prayer that the award made on 24-8-1985 be made binding upon the petitioners and implemented in letter and spirit. The suit was contested by the petitioners and an application under Order VII, rule 11, C.P.C. for the rejection of plaint was moved by invocation of the provisions of res judicata which was rejected by the learned Qazi Zhob/Sherani by means of order dated 3-10-2005 which was reversed by Majlis-e-Shoora, on appeal by means of judgment and decree dated 28-2-2006 which was assailed before the learned High Court by filing a revision petition and acceptance whereof has culminated into this civil petition for leave to appeal.

3. Mr. Jamal Khan Mandokhail, learned Advocate Supreme Court entered appearance on behalf of petitioners and contended that the learned single Judge in High Court has not appreciated the legal and factual aspects of the controversy in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is argued that the arbitration agreement in question has already been acted upon and the award given by the Arbitrator was made rule of the Court by means of judgment and decree dated 1-10-1985 and hence the question of institution of fresh suit for implementation of the arbitration agreement and award between the same, parties does not arise. It is contended that the suit in question should have been dismissed but on the contrary the learned single Judge in High Court has accepted the revision petition declaring that the suit is maintainable which is a glaring illegality and on this score along the judgment impugned is liable to be set aside. It is next contended that no fresh agreement whatsoever was in existence on 24-8-1985 on the basis whereof a new suit could have been instituted escaped the notice of the learned single Judge causing serious prejudice against the petitioners. It is next contended that the suit is not competent and ought to have been rejected in view of the provisions as enumerated in Order VII, rule 11, C.P.C. Mr. Jamal Khan Mandokhail, learned Advocate Supreme Court also argued that the order passed by the appellate Court could not have been reversed on the grounds which are not tenable in law and besides that no reasoning whatsoever has been given by the learned single Judge for reversing the judgment of the appellate Court.

4. We have carefully examined the above mentioned contentions in the light of relevant provisions of law and record of the case. We have minutely perused the judgment and decree of learned Qazi, Zhob/Sherani, the judgment and decree passed by Majlis-e-Shoora, as well as the judgment, impugned. After having gone through the entire record and perusing the judgment as mentioned hereinabove, we are not persuaded to agree with the prime contention of Mr. Jamal Khan Mandokhail, learned Advocate Supreme Court that the suit should have been dismissed pursuant to the provisions as enumerated in Order VII, rule 11, C.P.C. because the controversy has been set at naught completely. by means of judgment dated 1-10-1985 passed on the basis of award which was made rule of the Court for the reason that the earlier judgment/decree being a consent decree was obviously passed pursuant to the provisions as enumerated in Order XXIII, rule 3, C.P.C. and being a consent decree based on compromise between the parties can safely be equated to that of a contract, breach whereof would give rise to the fresh cause of.action and a fresh suit can be filed by an aggrieved person for the redressal of his grievances. In such like eventualities the judicial consensus seems to be that "a 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. Compromise decree is but a contract with superadded command of a Judge. Whether a subsequent suit is barred by reason of section 47, Civil Procedure Code, 1908 depends upon the existence of a decree which is executable for the purpose of the reliefs sought to be enforced in subsequent suit whether an earlier contract is superseded by a later 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 in such a way as to keep alive the original contract. Where a decree is passed on a compromise, 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". Arunachallam v. Sethupathi AIR 1925 Mad. 1260, C.J. Smith v. A. Kenny AIR 1924 Pat. 231, Jahuri Lal v. Kandhai Lal AIR 1935 Pat. 123, Hiralal v. Durga Bai AIR 1937 Nag. 413, Mitha v. Ramat Dass AIR 1937 Lah. 828, Amin Cotton Co. Ltd. v. Muhammad' Jamal and Co. PLD 1967 Karachi 795, A.R. Khan v. P.N. Bogha through Legal Heir PLD 1987 SC 107, Haji Muhammad Asghar v. Malik Shah Muhammad Awan and other PLD 1986 SC 542, Abdul Wahab and others v. Habib Ali and others PLD 1969 Lah. 365, Muhammad Hussain and others v. Walayat Shah and others PLD 1959 Lah. 526, Zahirul-Said Alvi v. Lachhmi Narayan AIR 1932 Privy Council 251, Surendra Nath Mitra and others v. Tarubala Dasi AIR 1930 Privy Council. 158, Sajjad Hussain v. Musarat Hussain Shah 1989 SCMR 1826.

5. It is worth mentioning that an identical question concerning compromise was discussed case titled Ramchandra Dec Garu v. Chaitana Sahu and others AIR 1920 PC 139, Chandoo v. Murlidhar and others AIR 1926 Oudh. 311 by referring 54 CJS para.314, Halsbury's Laws of England. Fourth Edition. Volume 37 para.382 and Volume 3 para.1118, and it was concluded that the only option available for an aggrieved party was either to file a review or institute a fresh suit. It can thus safely be B concluded that the suit preferred on behalf of respondent was maintainable.

6. We have also examined the judgment/decree of learned Majlis-e-Shoora, (appellate Court), operative portion whereof is reproduced herein below for ready reference:--

7. It reveals from the operative portion of the judgment as reproduced herein above that the legal aspects of the controversy could not be appreciated properly. The learned Majlis-e-Shoora, ignored that the earlier judgment/decree decided on 1-10-1985 was based on compromise executed between the parties on the basis of award given by the arbitrator which was made rule of the Court subsequently. Admittedly it was a consent decree based on compromise and non-compliance whereof provided a fresh cause of action on the basis whereof a fresh suit could have been instituted to get the compromise implemented in letter and spirit. In case of any deviation, violation and departure from the judgment/decree based on consent and compromise, the provisions enumerated in Order XIII, rule 3, C.P.C. can safely be pressed into service. There is no cavil to the proposition that a consent decree or order is nothing but a contract between the parties within command of the Court superadded to it and its force and effect is derived from contract between the parties on the basis where of consent decree was passed and hence it is binding upon the parties until a fraud is alleged in procuring such decree which is 'not the case of petitioners. In this regard we are fortified by the dictum laid down in case titled Nazir Ahmad v. Ghulama 1987 SCMR 1704, Shah Wali v. Ghulam Din PLD 1966 SC 983, Khurshid Akbar v. Marizur Ahmad 1982 SCMR 824, Bhai Khan v. Allah Bakhsh 1986 SCMR 849, Halsbury's Laws of England, Fourth Edn., Vol.37, para.390.

8. If we agree with the view point as canvassed at bar by Mr. Jamal Khan Mandokhail, learned Advocate Supreme Court it would mean that a consent decree based on compromise can be violated and its compliance depends on the whims and wishes of a party and in such an eventuality no remedy would be available to an aggrieved party which does not appeal to logic and reason and more so it would make the provisions redundant as contemplated in Order XXIII, rule 3, C.P.C.

9. We may mention here that even the appeal before Majlis-e-Shoora was not competent in view of the provisions as mentioned in section 4 of the Balochistan Civil Dispute (Shariat Application) Regulation, 1976.

10. The learned Advocate Supreme Court on behalf of petitioners could not point out any illegality or infirmity warranting interference in the judgment impugned. In such view of the matter, the petition being devoid of merits is dismissed and leave refused. M.B.A./P-4/SC Petition dismissed.