PLJ 2025 Karachi 1 (DB)
Present:
Yousuf Ali Sayeed and Arbab Ali
Hakro, JJ.
MUHAMMAD
SUFYAN--Appellant
versus
MUHAMMAD
SABREEN and others--Respondents
H.C.A.
No. 429 of 2022, decided on 11.10.2024.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII R. 11, O.XXIII Rr. 1 & 2 & S. 11--Application
for rejection of plaint--Dismissed--Preliminary decree--Preliminary order was
attained finality--Question of whether findings rendered in impugned order
concerning Order VII, R. 11, PPC application are tenable--Compromised decreed
passed--Property was divided equally--It is well established that a compromise
decree constitutes a contractual agreement between parties, and its breach
engenders a cause of action for aggrieved party to seek judicial redress--In
instances where a consent compromise decree is promulgated, recourse available
to aggrieved party is to institute a fresh suit--Moreover, in instant suit, an
application under Order XX Rule 13, C.P.C. was moved by Respondent No. 2, which
was allowed--Consequently, a preliminary decree was passed, and Nazir complied
with matter--The appellant had not impugned order and preliminary decree;
hence, it had attained finality--Section 11, C.P.C. is not stringently
applicable to a compromise decree, as its purview is confined to matters that
have been conclusively adjudicated by Court--The doctrine of resjudicata,
enshrined in Section 11, predicates that no Court shall try any suit or issue
in which matter directly and substantially in issue has been directly and
substantially in issue in a former suit between same parties and has been heard
and finally decided by such Court--The meticulous analysis and judicious
application of legal principles by Single Judge in adjudicating matter had
withstood scrutiny of appellate forum--The appellant’s contentions, bereft of
substantive merit, failed to demonstrate any palpable error or misapprehension
in impugned Order--Appeal dismissed. [Pp.
5 & 6] A, B, C & D
Mr. Yousuf Moulvi & Ms. Riffat Murtaza, Advocates
for Appellant.
Mr. Muhammad Aslam, Advocate for Respondent No. 1.
Mr. Abdul Razzak and Mr. Aqib Hussain, Advocates for
Respondent No. 2.
Dates of hearing: 9.9.2024 & 30.9.2024.
Judgment
Arbab Ali Hakro, J.--Through this High Court Appeal, the
appellant has assailed the Order dated 29.11.2022 (“impugned order”),
rendered by a learned Single Judge of this Court in Suit No. 1428 of 2011,
whereby C.M.A. No. 6051/2019 (under Order VII Rule 11, C.P.C.) was dismissed.
2. Succinctly
stated, the salient features of the controversy are that the appellant and
respondents are the progeny of the deceased Muhammad Din, who departed this
mortal coil on 12.08.1985, leaving behind properties, the particulars of which
are delineated in Para-2 of the memorandum of appeal in hand. For the
administration of the said properties, the appellant instituted Civil Suit No.
646/1988 (“earlier suit”), arraying the respondents as parties. The said
lis was disposed of under the prescriptions of Order XXIII Rules 1 & 2,
CPC, and a compromise decree was also drawn on 13.02.1989. Pursuant to the said
compromise, the properties left by the deceased were to be shared equally between
the appellant and the respondents, the particulars of which have been described
in Para-6 of the memorandum of appeal. It is averred by the appellant that
Respondent No. 1, after more than two decades, instituted Civil Suit No.
1428/2011 for the administration of the property bearing No. 5-D-11-14,
Nazimabad, Karachi (“subject property”) as well as the distribution of
PKR 2,19,379/-. As time elapsed, a preliminary decree was passed by the learned
Single Judge in the later suit vide Order dated 06.03.2018. The
appellant herein preferred CMA No. 6051/2019 under the provisions of Order VII
Rule 11, CPC on the ground that the principle of resjudicata bars the later
suit. The learned Single Judge dismissed this CMA through the impugned Order;
hence, the impugned Order is under scrutiny in this High Court Appeal.
3. Mr. Yousuf
Moulvi, Advocate, premised his case on the contention that the impugned Order
is untenable on the ground that the lis between the same parties on the same
subject matter had been adjudicated through a consent decree in an antecedent
suit. The subsequent suit instituted by Respondent No. 1 against the appellant
on the identical subject matter is precluded under the prescriptions of Order
VII Rule 11, CPC, which was not duly considered by the learned Single Judge,
thereby rendering the impugned Order. He further contended that Respondents No.
1 and 2 have been remunerated their lawful shares and that the appellant is in
actual possession of the subject property as his share in the inheritance.
Moreover, the consent decree had not been impugned by Respondent No. 1. Yet,
recourse to an independent suit on the identical subject matter and between the
same parties is interdicted under the provisions of Order VII Rule 11, CPC.
Nevertheless, the learned Single Judge failed to consider the legal and factual
issues duly and rendered the impugned Order, which ought not to be sustained in
the eyes of the law. He placed reliance on the case laws reported as 2021 CLC
877, 2018 YLR 33, 2020 PLD Peshawar 79 and 2004 YLR 1180.
4. Learned counsel
for the respondents refuted the arguments advanced on behalf of the appellant
and contended that the subsequent suit was instituted as the estate of the
deceased father remains in contention and all estates have not been apportioned
among the parties to the lis as stipulated in the compromise decree.
Consequently, the learned Single Judge did not err in holding that the plaint
cannot be rejected and, if rejected, would cause substantial prejudice to those
legal heirs who have not yet received their shares in accordance with Sharia.
In concluding their submissions, learned counsel asserted that a preliminary
decree had been rendered in the suit and that Nazir proceeded with the matter.
Therefore, it would be judicious for the suit to reach its conclusion in
accordance with the law and allow the suit to subsist; hence, the instant HCA
should be dismissed. He placed reliance on the precedents reported as 2009 SCMR
1268, 2020 MLD 1328, 2015 YLR 89 and 2022 SCMR 1121.
5. We have heard the respective learned counsel at length and
have meticulously reviewed the documentation and authority to which our
attention was solicited. It is deemed illustrative to commence this
deliberation by referring to the crux of the impugned Order rendered in the
suit, which is reproduced hereunder:
“I have perused the
above Order in which all aspects were considered, inter alia, by observing that
since the properties are still in the name of deceased father, therefore, it
justifies passing of a preliminary decree in this suit. Secondly, this order
has not been appealed against, rather acted upon, as learned Nazir is
conducting the proceeding.
In view of the
above, since this fact is un-rebutted that all the properties have not been
transferred as agreed in the earlier compromise decree and the learned Nazir
has initiated proceedings, therefore, at this stage plaint cannot be rejected because
it will seriously prejudice the inheritance of those legal heirs, who have
still not got their shares in accordance with the Sharia.
Consequently, this application is dismissed.”
6. At the very
outset, the suit remains sub judice as of date. Therefore, we shall
circumscribe our deliberations to the specific issue before us, which is the
findings concerning the Order VII Rule 11, CPC application, and we proffer no
observations upon the merits that may impinge upon the proceedings in the suit.
7. The pleadings of
the present appeal circumscribe the ambit of this determination as to whether
the findings rendered in the impugned Order concerning the Order VII Rule 11,
CPC application are tenable. All the learned counsel sought to argue the
present appeal at this stage with the assistance of the record and proceedings
of the suit. Consequently, the appeal was heard at length to adjudicate the
following point for determination, framed in pursuance of Order XLI Rule 31,
CPC:
Whether the
determinations of the learned Single Judge in the impugned Order, pertaining to
the Order VII Rule 11, C.P.C. application, are tenable?
8. It is a matter of
record that Suit No. 646/1988, pertaining to the same suit/subject property,
was instituted, culminating in a compromise, and a compromise decree dated
13.02.1989 was promulgated. However, the terms of the said decree have not yet
been adhered to. It is well established that a compromise decree constitutes a
contractual agreement between the parties, and its breach engenders a cause of
action for the aggrieved party to seek judicial redress. In instances where a
consent compromise decree is promulgated, the recourse available to the
aggrieved party is to institute a fresh suit. Jurisprudential guidance can be
derived from the precedents set in the cases of Ramchandra Dec Garu[1]
and Chandoo,[2]
wherein it was adjudicated that the sole recourse for an aggrieved party is
either to file a review or to initiate a fresh suit. In the present matter, the
antecedent suit was resolved through a compromise, and a compromise decree was
issued on 13.02.1989. However, the decree remains unexecuted, and the appellant
has contravened its terms. Consequently, the non-compliance with the decree
provides a novel cause of action, warranting the institution of a fresh suit,
as has been effectuated in the instant case. Moreover, in the instant suit, an
application under Order XX Rule 13, C.P.C. was moved by Respondent No. 2
Muhammad Irfan, which was allowed vide an order dated 6.3.2018.
Consequently, a preliminary decree was passed, and the Nazir complied with the
matter. The appellant has not impugned the aforementioned Order and the
preliminary decree; hence, it has attained finality.
9. Section 11, C.P.C. is not stringently
applicable to a compromise decree, as its purview is confined to matters that
have been conclusively adjudicated by the Court. The doctrine of resjudicata,
enshrined in Section 11, predicates that 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 and has been
heard and finally decided by such Court. However, a compromise decree, being
passed on the basis of mutual consent of the parties, does not entail a
judicial determination on merits. It is essentially a contract with the
imprimatur of the Court and, thus, lacks the element of judicial adjudication
that is quintessential for the invocation of Section 11. Consequently, the
principles of resjudicata encapsulated in Section 11, C.P.C. do not extend to
compromise decrees, as they do not embody a final adjudication by the Court on
the substantive issues in dispute.
10. The arguments
propounded before us by the learned counsel for the appellant have been
ineffectual in dislodging the cogent
and well-reasoned
conclusion reached by the learned Single Judge in the impugned Order. The
meticulous analysis and judicious application of legal principles by the
learned Single Judge in adjudicating the matter have withstood the scrutiny of
this appellate forum. The appellant’s contentions, bereft of substantive merit,
failed to demonstrate any palpable error or misapprehension in the impugned
Order that would warrant its reversal.
11. For
the foregoing reasons, prima facie, we do not discern any error or
illegality in the impugned Order. Therefore, the instant appeal is dismissed
along with pending miscellaneous applications.
(J.K.) Appeal dismissed