2026 PLP 98 (CLC)

DR. KHURSHID IQBAL, J.

This Revision Petition is directed against the judgment and decree dated 17/10/2017 of the learned first appellate Court that has reversed an Order of rejection of a plaint rendered by the trial Court passed on 11/12/2013. The question before the learned Courts was whether the plaint in a suit was liable to rejection under Order VII, R. 11(d), the Civil Procedure Code, 1908 (C.P.C.) being barred by law (as res judicata) since the former suit was dismissed as withdrawn on the basis of a certain compromise to which the petitioners, statedly, were not a party. The petitioners submitted their written statement. By an application, they also sought rejection of the plaint on the ground of res judicata. They contended that a former Suit No. 433 of 1986) of the respondents was dismissed by the trial Court, their appeal also dismissed and their Revision Petition No. 1086) before this Court withdrawn on the strength of an application in which they stated that a compromise was arrived at between the parties. By its order dated 09/08/2004, this Court, however, dismissed the revision petition as withdrawn.

2. During the hearing of their appeal against the rejection of their plaint, the respondents moved two applications: one, for permission to file fresh suit of specific performance; another for amendment in the plaint. A third application was submitted by as many 18 women of the same village, for their impleadment in the plaint. The learned appellate Court held that a compromise was entered between the parties and its mere non-mentioning by this Court in its order was of no legal effect. It, however, allowed the application for filing of fresh suit at the cost of Rs. 5,000/-arid declared the other applications as infructuous. Both the Courts recorded different opinions.

3. Mr. Razaullah, learned counsel for the petitioners mainly focused on the point that the petitioners were not parties to the compromise in the year 2004, and that on this score the plaint was barred by res judicata. Mr. Shah Salam Khan, learned counsel for the respondents/plaintiff, conversely, argued that the petitioners were parties to the compromise. He maintained that the former suit was of representative nature and elders of the tribes to which the petitioners belong were present before the Court. I have perused the record including the case law both the learned counsels referred to support their pleas. I have perused the record. In response to a question of limitation (the impugned order passed on 17-10-2017 and the revision filed on 23-11-2017, after 35 days), learned counsel for the petitioners submitted that the revision petition in hand being in terms of section 115, C.P.C., the period of limitation is 90 days. He relied on the Order of the august Apex Court in Civil Appeals Nos. 35/2017 and 217/2014, decided on 25-04-2017 (placed on the record). Hence, the objection is overruled and the revision is held to be within time.

4. To start with, the respondents (plaintiffs in the former suit as representatives of Imamkhel) in their application before this Court sought withdrawal on the basis of compromise. However, this Court, in its order didn't mention the factum of compromise and allowed simple withdrawal of the suit. Nur-ul-huda, Mohiyuddin and Zakirullah (the Respondents Nos. 1 to 3) were representatives of Imamkhel. The former suit was admittedly of representative nature as it pertained to a dispute over the royalty of the forest amongst Imamkhel (the tribe to which the respondents/plaintiffs belong), and Neelor, Kalamkhel, Daraykhel, Jaflor and Damorkhel (the tribes to which the petitioners/defendants belong). It is worth adding that the tribes were represented by special attorneys and as many as 08 persons as defendants signed the compromise. Those 08 persons included Habib Khan (son of Faham Khan), and Hazrat Faqir Malik (son of Khaista Khan)-Defendants Nos. 8 and 9, in the present suit. Moreover, as many as 12 persons signed or thumb impressed the compromise deed as jirga members; two amongst them were shown as belonging to Jaflor and Daraykhel. A couple of points are gleaned from the above discussion. Firstly, the former suit was representative, as such, not all members of the tribes were supposed to be present before the Court. Secondly, the dispute was over the tribe's entitlement of royalty of the forest, pertained to a common interest of the village's propriety body. Thus, the petitioners' contention that they were not parties to the compromise is not tenable as far the existence of the cause of action is concerned. Third, there was compromise which also reflects that a jirga was convened for its purpose. The withdrawal of the C.R/suit was sought on the basis of compromise only. This is also clear from the contents of the application submitted before this Court for disposal of the C.R/suit. It follows that withdrawal was not proposed to be simple. However, the order dated 09-08-2004 by which this Court disposed of the C.R/suit is silent about the factum of compromise.

5. Concisely, the question before this Court is purely a legal one, i.e., whether the appellate Court was justified in granting permission to the respondents to file a fresh suit for specific performance on the basis of the compromise (agreement) which was previously entered into between the parties at the time of withdrawal of the revision petition. Probably, there can be three different scenarios regarding compromise between the parties in the life of a civil suit. First, a compromise arrived at in the Court and it covers the subject matter of the suit. Second, a compromise entered in the Court but beyond pleadings and third, a compromise in or out of the Court but beyond the scope of the pleadings. The implication of the first scenario will be that it will have the status of a decree Khaavir Saeed Raza v. Wajahat Iqbal (2003 CLC 1306 [Lahore]). The remaining two will create a fresh cause of action. In this regard, reference may be made to the cases of Sindh Road Transport Corporation v. Major (Rtd.) S.M. Ali Zaheer Khan (1991 SCMR 425) and Muhammad Muzaffar v. Maqsood-UI-Hassan (2006 SCMR 1157). Moreover, august Supreme Court, in the case of Syed Ishaque Hussain Rizvi and others v. Sheikh Mubarik Ali and others (2005 SCMR 1604) observed: "The civil rights subject to law, can be enforced through a civil suit except the rights which flow from a decree and thus, a suit for enforcement of decree is not competent under section 47, C.P.C. but in the present case, the right claimed by respondents Nos.1 and 2 under the agreement, dated 13-8-1980 having been not created in their favour under the decree would not be determinable in terms of section 47, C.P.C. and consequently, the suit would not be defeated on the basis of technical objection. The decree dated 25-2-1977 being declaratory in character also would not be as such capable for execution therefore, provisions of section 47, C.P.C. even otherwise would not debar the suit."

6. As noted above, the compromise in the case in hand was out of Court. Thus, res judicata does not apply in the circumstances of the case. In the circumstances, when the respondents/plaintiffs are free to file a fresh suit on the basis of compromise subject to other limitations imposed by law, there is no occasion to seek or grant permission for the same. Therefore, to that extent, the impugned order dated 17-10-2017 of the learned appellate Court is partially modified and the imposition of cost is set aside. The revision petition is disposed of accordingly. MQ/137/P Revision dismissed.