P L D 2025 Peshawar 59 (PLP)

S M ATTIQUE SHAH. J.

Impugned herein are the findings of the learned Appeal Court, whereby appeal filed by the respondents against the findings of learned trial Court was accepted.

2. Heard.

3. Record reflects that respondents Nos. 1 to 15 (respondents) instituted a suit against the petitioners (petitioners) to the effect that they are owners of their respective shares in Khasra numbers 46, 47, 48, 49, 52, 55, 75, 77 and 78 and; petitioners have got no right to possess the valuable portion of the property till its official partition. Petitioners contested the suit by filing their written statement, along with an application under Order VII, Rule 11, C.P.C. for rejection of the plaint on the ground that the matter in question had already been finally decided between the parties in the earlier round of litigation and as such the suit is hit by the principle of res-judicata under section 11, C.P.C., besides, the same is also hit by the provision of Order XI, Rules 2 and

3. The ibid application was accepted by the learned Trial Court and; the plaint was rejected, which findings were reversed by the learned Appeal Court on the ground that the previous suit was decided on a compromise and not on merits, as such, the provision of Section 11, C.P.C., does not attract to the present suit.

4. The moot question for determination in the instant suit is, whether the provision of Section 11, C.P.C. attracts, where the earlier suit was decided on the basis of compromise or otherwise. For the sake of convenience, the same is reproduced below: "Section

11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." Under the ibid provision, the doctrine of res-judicata would only be applicable, when the matter is directly and substantially in issue in a subsequent suit or the issue must have the same subject matter which is directly and substantially in issue, either actually or constructively in a former suit, between the same parties or between the parties under whom they or anyone of them claim and; being so ligitated under the same title in the former suit, which had been heard and finally decided on merit, by a competent Court of law. Indeed, in absence of any of such elements the provision of section 11 C.P.C, would not attract. The principle of res judicata is based on the consideration that the same cause should not be tried for the second time between the same parties and there must be an end to the litigation between the parties. Mere observation on a question of fact without proper adjudication in absence of evidence, would not operate as res judicata. Besides, other grounds, the condition of a final decision on the merits of a dispute between the parties is of paramount importance. "Muhammad Saleem v. Additional District Judge, Gujranwala" (PLD 2005 SC 511). When litigation ended on the basis of a statement of parties, without conclusive determination of the disputed question of fact on merits between the parties, the same can at best be termed a decision on the basis of a compromise/settlement and; under such circumstances, the principle of res judicata would not attract to subsequent litigation. As earlier discussed, it can only apply when the previous lis/application or proceedings have directly or substantially decided the controversy between the parties on merits after recording their evidence. "Mubeen Rafeeq v. Rashid Ahmad" (PLD 2022 Sindh 449). Furthermore, except respondent No 8, none of the parties in the present case, remained parties in the earlier lis. Moreso, in view of peculiar facts and circumstances of the case, as discussed above, the provision of Order XI, Rules 2 and 3 also does not attract to the present proceedings.

5. Besides, a private partition is indeed a private arrangement, between the parties, which can only get finality and sanctity through a legal process so provided by the law. This Court with the able assistance of worthy counsel representing the parties has scanned the entire record of the case; but, could not lay its hands on any material which can support the stance of the petitioners.

6. The findings rendered by the learned Appeal Court through its impugned judgment are not suffering from any illegality or irregularity; rather, the same is based on proper appreciation of material available on record of the case, hence, do not require any interference by this Court in its Revisional Jurisdiction under Section 115, C.P.C., which is otherwise very narrow and limited in its scope. Hence, the instant revision petition is dismissed; being meritless. SA/153/P Revision dismisse