SHAH RASOOL Versus Maulana GHULAM RAHIM

MALIK MANZOOR HUSSAIN, J.--- This appeal has been directed against the judgment dated 26.4.2000 passed by learned trial court/Civil Judge, Dir Bala, whereby suit filed by the appellants was dismissed on plea of res judicata.

2. Briefly stated the facts of the instant appeal are that the appellant filed a suit for declaration, payment of forest royalty and permanent injunction, details of which fully described in heading of the plaint. During pendency of the suit, the respondents filed an application for dismissal of suit and after hearing the parties, the learned trial court through order dated 26.4.2000 accepted the application and dismissed the suit, hence, the present appeal.

3. Learned counsel for the appellant contended that the earlier suit was filed in year, 1995, and on the basis of compromise, the suit was withdrawn, vide order dated 2.5.1995 while fresh suit was filed on 26.9.1998. He argued that since the earlier suit was not decided on merit but was withdrawn on the basis of compromise, therefore, the provision of Order XXIII Rule 3 C.P.C were not applicable on the basis of which the suit was dismissed. He further argued that on different causes of action the suit was filed, therefore, the learned court below failed to apply the correct law.

4. Conversely, learned counsel appearing on behalf of the respondent supported the judgment of learned trial court.

5. Arguments heard and record perused.

6. Perusal of the record reveals that the earlier suit filed was withdrawn on the basis of compromise effected between the parties, available on record as Ex.PA, and on the basis of same, vide judgment dated 2.5.1995, the suit was dismissed as withdrawn and not on merit.

7. It is well settled by now that a compromise decree is a contract between the parties and its breach would gave a cause of action to the other party to approach the court to seek remedy. In case where judgment is passed on the basis of compromise, the remedy available to aggrieved party is to file a fresh suit. Wisdom can be borrowed from the judgment passed in the cases of Ramchandra Dec Garu v. Chaitana Sahu and others (AIR 1920 PC 139) and Chandoo v. Murlidhar and others (AIR 1926 Oudh 311), wherein it was concluded that the only option available for an aggrieved party was either to file a review or institute a fresh suit. The earlier judgment was passed on 2.5.1995 on the basis of compromise executed between the parties. Admittedly, it was an order passed on the basis of compromise and non compliance of the same provides a fresh cause of action on the basis whereof a fresh suit could have been instituted as has been done in the instant case. In the case of Peer Dil and others v. Dad Muhammad (2009 SCMR 1268), it was held by the Hon'able apex court that in case of any deviation, violation and departure from the judgment/decree based on consent and compromise, the provision enumerated in Order XIII Rule 3 C.P.C. can safely be pressed into service and it was further held that there is no cavil to the proposition that a consent decree or order is nothing but contract between the parties within command of court. If we agree with the view point as canvassed by the learned counsel for the respondent that earlier suit was dismissed without out seeking permission under Order XXIII Rule 3 C.P.C, then in such eventuality no remedy would be available to the aggrieved party. In similar situation in case of Muhammad Mazhar Iqbal and 8 others v. VIth Additional District Judge and 5 others (2010 MLD Karachi 439) it was held that when suit had not been finally heard and decided by Trial Court, doctrine of res judicata was not attracted in circumstances. The withdrawal of earlier suit was not simply withdrawn but it was passed on the basis of duly executed compromise between the parties and in that eventuality fresh suit was not barred, therefore, learned trial court has failed to appreciate the legal perspective of the case while delivering the judgment, thus, findings of trial court are not correct and liable to be set aside.

8. In view of what has been observed above, this appeal is allowed, judgment of trial court is set aside, and the matter is remitted back to the trial court to proceed with the matter in accordance with law. Similarly, Review Petition No. 53/2006 is dismissed being infructuous.

SL/212/P Case remanded.