Q.B.E. INSURANCE (INTERNATIONAL) LTD. vs JAFFAR FLOUR AND OIL MILLS LTD.

ORDER

' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This petition for leave to appeal has been filed against the judgment dated 20th November, 2001 passed by the Lahore High Court, Lahore, whereby civil revision filed by the petitioner has been dismissed by means of impugned judgment.

2. Precisely stating the facts giving rise to instant proceedings are that during the pendency of the suit filed by the respondents Messrs Jaffar Flour and Oil Mills Ltd. Etc. Against the petitioner for the recovery of Rs,4,44,85,385 petitioner submitted an application under Order VII, rule 11, C.P.C. Read with Order I, rule 10, C.P.C. With the prayer that his name may be deleted and the plaint be also rejected for the reason that in the earlier litigation between the parties the High Court had already decided the issue in terms of compromise in pursuance of an application under Order XXIII, rule 3, C.P.C. The request so made by the petitioner was rejected by the trial Court vide judgment, dated 2nd November, 1993 as such against this order revision was filed before the High Court but without any success as vide impugned judgment, same has been dismissed, as such instant petition for leave to appeal has been filed.

3. Learned counsel for the petitioner emphatically argued that in respect of the same issue matter has already been settled between the parties but the respondents without disclosing this fact have instituted a fresh suit for the recovery of money and as earlier in respect of same cause of action compromise has been effected, therefore, no other cause of action is available to him, thus, keeping in view this fact the plaint submitted by the respondents deserved to be rejected.

4. We have examined the impugned judgment as well as material available on record in the light of arguments so advanced by the learned counsel for the petitioner. It is well-settled principle of law that a plaint can be rejected if the case falls within the fore-corners for the provisions of Order VII, rule 11, C.P.C. Keeping in view the contents of the plaint and material available on record in respect whereof there is no dispute between the parties, we inquired from the learned counsel as to whether the averment made in the application seeking rejection of the plaint by the petitioner were accepted and the facts mentioned therein were admitted by the other side, he stated that contents whereof were denied. Therefore, in such view of the matter we are of the opinion that so far as the question of earlier litigation between the parties and its disposal in terms of compromise is concerned, it is a question which can only be settled after framing of issue and recording of evidence because parties are at variance on it and the respondent being plaintiff had not admitted the same in reply of the application. Since the trial Court had entertained the plaint on the basis of whatever cause of action was mentioned therein, therefore, under these circumstances, it would be appropriate if the trial Court is allowed to proceed with the matter and thereafter decide the issue including the one with regard to previous litigation ended with compromise between the parties after recording of evidence.

' Thus, for the foregoing reasons, we see no merit in this petition, as such same is dismissed and leave declined.