Filing of Fresh Suit on the Basis of Out-of-Court Compromise – Res Judicata Not Applicable.
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Must read judgement.
2026 C L C 98
[Peshawar (Mingora Bench)]
Before Dr. Khurshid Iqbal, J
HABIB ULLAH and others-Petitioners
Versus
NOOR-UL-HUDA and others ---Respondents
C.R. No. 383-M of 2017 with C.Ms. Nos. 1464 and 1465-M of 2017, decided on 19th December, 2022.
(a) Civil Procedure Code (V of 1908)-
rejection of a plaint and S. 11, O. VII, R. 11(d) & O. XXIII Former suit (a civil revision) withdrawn before the High Court on the basis of compromise Subsequent filing of plaint-Whether liable to be rejected or not-Suit being of representative character-Effect-Res judicata-Scope-Revision was filed by the defendants against the judgment and decree of the first Appellate (District) Court that reversed an order of rejection of a plaint rendered by the Trial Court--Appellate/District Court held that a compromise was entered between the parties not parties to the compromise-Validity-Record revealed that previously the respondents (three in number) were plaintiffs in the smere non-mentioning mentioning by the High Court in its order was of no legal effe legal effect-Contention of the petitioners being that they were brder didn't mention the factum of compromise and allowed simple withdrawal of the suit Admittedly, the former suit was also of former who in their application before this(High) Court sought withdrawal on the basis of however, this cours representative nature having been filed by the respondents being representatives of their tribe as it pertained to a dispute over the royalty forest amongst their tribe with the to petitioners/defendants belonged-Pertinently, tribes were represented by special attorneys and as many as 08 persons as defendants signed the compromise who were impleaded in the present suit-Moreover, as many as 12 persons signed or thumb impressed the compromise deed as jirga members; two amongst thein were shown as belonging to two tribes-Thus, firstly, the former suit was représentative, as such, not all members of tribes wer supposed to be present before the Court; secondly, the dispute was over the tribe's entitlement of royalty of the forest, pertaining to a common interest of the village's propriety body, thirdly, there was compromise which also reflected that a jirga was convened for its purpose---Hence, the petitioners' contention (that they were not parties to the compromise) was not tenable as far the existence of the cause of action was concerned-No illegality or infirmity had been noticed in the impugned judgment allowing filing of plaint to the respondents---Revision, filed by the defendants was dismissed, in circumstances.
(b) Civil Procedure Code (V of 1908)...
S. 11, O. VII, R. 11(d) & O. XXIII---Former suit (a civil revision before the High Court at relevant time) withdrawn on the basis of compromise Factum of the compromise not mentioned recorded by the High Court-Subsequent filing of plaint Whether liable to be rejected or not-Kes judicata Scope-Appellate/District Court held that a compromise was entered between the parties and its mere non-mentioning by High Court in its order was of legal effect Revision was filed by the defendants against the judgment and decree of the first Appellate (District) Court that reversed an order of rejection of a plaint rendered by the Trial Court-Whether the plaint in a suit was liable to rejection under ble to rejection under O. VII, R. 11(d), C.P.C., being barred by law (as res judicata) si since the form former suit was dismissed as withdrawn on the basis of a certain compromise---Petitioners/defendants sought rejection of the plaint on the ground of res judicata, contending that a former suit of the respondents was dismissed by the Trial Court, their (respondents') appeal was also dismissed and their revision petition before High Court was dismissed as withdrawn Whether the Appellate/District Court was justified in granting permission to the respondents plaintiffs 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--Held: Record revealed that the withdrawal of the civil revision/suit (C.R/suit) was sought on the basis of compromise only: the same was also clear from the co contents of the application su pplication submitted before High Court for dis disposal of the C.R/suit; however, the order of the High Court by w which the Court disposed of the C.R/suit was silent about the factum of compromise Thus, the withdrawal in question was not proposed to be simple-In the present case, the compromise was out of Court-Thus, res judicata did not apply in the circumstances of the case No illegality or infirmity had been noticed in the impugned judgment allowing filing of plaint to the respondents-Revision, filed by the defendants was dismissed, in circumstances.
(c) Civil Procedure Code (V of 1908)---
S. 11, O. VII, R. 11(d) & O. XXIII Withdrawal of suit Compromise, basis of Scenarios and respective implications Res-judicata Scope-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; the remaining two will create a fresh cause of action.
Khaavir Saeed Raza v. Wajahat Iqbal 2003 CLC 1306; Sindh Road Transport Corporation v. Major (R.) S.M. Ali Zaheer Khan 1991 SCMR 425; Muhammad Muzaffar v. Maqsood-UI-Hassan 2006 SCMR 1157 and Syed Ishaque Hussain Rizvi and others v. Sheikh Mubarik Ali and others 2005 SCMR 1604 ref.
(d) Civil Procedure Code (V of 1908)---
S. 11, O. VII, R. 11(d) & O. XXIII---Filing a fresh suit on the basis of compromise right of-Limitations---Revision was filed by the defendants against the judgment and decree of the first Appellate (District) Court that reversed an order of rejection of a plaint rendered by the Trial Court Appellate/District Court theld held that the a compromise was entered between the the parties and its mere non-mentioning by the High Court in its order was of no legal effect-Appellate /District Court, however, allowed the application for filing of fresh suit at a cost of Rs. 5,000/ Validity In the present case, the compromise was out of Court Thus, res-judicata did not apply in the circumstances of the case-In the circumstances, when the respondents/plaintiffs were free to file a fresh suit on the basis of compromise subject to other limitations imposed by law, there was no occasion to seek or grant permission for the same High Court set aside the imposition of cost, therefore, to said extent, the impugned order of the Appellate / District Court was partially modified.. Revision petition was disposed of accordingly.
Razaullah for Petitioners.
Shah Salam Khan, Ikramullah Khan and Javed Ali Ghani for Respondents Nos. 1 to 3.