' This appeal has been preferred against the judgment and decree dated 21-5-2003, whereby the respondent's application under Order VII, Rule 11, C.P.C. Has been accepted and the appellant- bank's recovery suit has been dismissed by the learned Banking Court No,1, Multan.
2. The brief facts giving rise to this appeal are that the appellant is a banking company and is governed by the Agricultural Development Banking Ordinance (IV of 1961). The respondent is a customer of the appellant-bank, who applied on 1-11-1989 for Rs, 6,31,500 vide L.C. No,181962 as finance facility for acquiring tractor, goat farming and implements. The said facility was allowed under the Islamic Mode of Financing vide sanction advice dated 7-12-1989. In order to secure the said facility, the respondent inter cilia executed the Agreement for Trade Related Modes of Financing dated 16-12-1989, besides mortgaging his property measuring 147 kanals, 16 marlas situated in Mauza Jhok Gamoon, Multan in favour of the appellant-Bank, which charge was duly incorporated in the Revenue Record vide Mutation No,650 dated 29-12-1989. The respondent failed to re-pay the facility as per commitment but instead of repayment, he filed a suit for permanent injunction in the learned Banking Court, Multan, in which no interim injunction was granted by the court, However, during the pendency of this suit, the respondent filed on 19-2-1996 another suit for rendition of account and permanent injunction, which was contested by the appellant-Bank by claiming set off against the respondent. However, a compromise was affected between the parties before the learned Banking Court and the said suit was decided on 4-11-1999 in the following manner:- "In view of the statements made by the plaintiff and counsel for the respondent, recorded above, the suit is decreed in favour of the defendants against the plaintiff to the tune of Rs,12,27,470. The plaintiff shall deposit this amount in the form of equal quarterly instalements of Rs, 2,04,578.33 each to be deposited by 4-2-2000, 4-5-2000, 4-8-2000, 4-11-2000, 4-2-2001 and 4-5-2001. In case the plaintiff fails to deposit any instalment, the defendant will be at liberty to seek recovery of the remaining decretal amount in lumpsum through execution petition, which shall be carried out against the mortgaged property. If the same does not satisfy the decree, other property and even person of the plaintiff shall be liable. Further, the defendants shall be entitled to recover mark-up from 1-7-1999 till realization of the whole decretal amount. However, the defendants shall deposit court fee -to the tune of Rs,15,000 in the court by 4-12-1999, failing which the claim shall stand dismissed. In case of regular deposits, the defendants shall not adopt any measure of recovery against the plaintiff till the terminal date, viz, 4-5-2001. In view of the compromise between the parties, the plaintiff shall have to pay half cost of litigation".
3. Instead of depositing court fee of Rs,15000 in terms of order dated 4-11-1999, the appellant-Bank filed an application for extension of time, which was contested by the respondent and was dismissed on 29-2-2000 by the learned Banking Court. Thereafter, the appellant filed the instant suit for recovery of Rs,12,27,470 as on 30-6-1999 against the respondent before the learned Banking Court No, 1, Multan, which was contested by the respondent by filing application for leave to defend the suit, which was allowed and issues were framed on 3-7-2001. At that point, the respondent filed application under Order V11, Rule 11, C.P.C. For rejection of the plaint, which was contested by the appellant-Bank, but was accepted on 21-5-2003 and consequently, the learned banking court dismissed the appellant-Bank's suit, hence, this appeal.
4. Learned counsel for the appellant-Bank states that the impugned order of the learned Banking Court is patently illegal, and unlawful, as he cannot dismiss the recovery suit and at the most only plaint could be rejected. The impugned order of dismissal of the suit under Order VII, Rule 11, C.P.C. Is outside the purview of the provisions of the said Rule. Had the plaint been rejected, the appellant- bank would have right to file a fresh suit under Order VII, Rule 13, C.P.C., but due to dismissal of the suit through the impugned order, the appellant-bank has been illegally and unlawfully deprived of such right by the learned Banking Court. In support of his contention; learned counsel for the appellant-Bank has relied upon judgment reported in Sher Muhammad and 2 others v. Aroora (1984 CLC 3292).
5. The contention of, the learned counsel for the appellant has been controverted by the learned counsel for the respondent, who has stated that the order dated 21-5-2003 is in accordance with law and no exception can be taken thereagainst. He has contended that the claim of the appellant-Bank to the tune of Rs,12,04,470 was decreed on the basis of compromise dated 4-11- 1999, which was conditional and both the parties were obliged to fulfil their respective conditions imposed on them by the learned banking court. The failure of the appellant-Bank to fulfil the condition to deposit the court fee by 4-12-1999 has resulted into dismissal of its claim, which cannot be re-agitated in view of the bar contained in section 11, C.P.C. He has supported the impugned order/decree of the learned Banking Court and has also relied upon PLD 1963 Dacca 816, 1991 M LD 2295, 1991 MLD 57 and PLD 1992 SC 822.
6. We have heard the counsel for the parties and perused the record.
7. The record of the case reveals that in the respondent's suit for rendition of account and permanent injunction, compromise was affected between the parties, whereby the respondent acknowledged the liability amounting to Rs,12,27,470 and was allowed to re-pay the same in six equal instalments, each amounting to Rs, 2,04,578.33 to be deposited on 4-2-2000, 4-5-2000, 4-8- 2000, 4-11-2000, 4-2-2001 and 4-5-2001. It was categorically held in the consenting order that if the respondent fails to deposit any instalment, the entire remaining instalments shall become recoverable in lump sum. Similarly, a condition was also imposed on the appellant-Bank that as the set off claimed by it has been decreed, therefore, it would deposit Rs,15,000 as court-fee by 4- 12-1999, failing which its claim shall stand dismissed. It may not be out of place to mention here that none of the parties ever objected to this consenting decree or the conditions contained therein. The appellant-Bank did not comply with the said order and instead of depositing the court-fee, it filed an application for extension of time on 18-12-1999 that, too after the expiry of the, period given by the learned Banking Court for the deposit of the court-fee. The learned Banking Court dismissed the said application vide order dated 29-2-2000. Again nstead of challenging the order before the higher court, the appellant-Bank elected to file a fresh/instant suit, which was contested by respondent through filing application for leave to defend, which was allowed, but instead of producing evidence, the respondent preferred to file application under Order VII, Rule 11, C.P.C. By contending that the subject-matter of the suit has been finally decided between the parties to the suit vide compromise decree dated 4-11-1999, which has attained finality, therefore, the instant suit is hit by the principle of res judicata, hence, liable to be dismissed. This application was contested by the appellant-Bank, but dismissed by the learned Banking Court vide impugned order dated 21-5-2003. The contention of learned counsel for the appellant-Bank that through impugned order at the most the learned Banking Court could reject the plaint and not the suit; is without substance, because the decree passes on 4-11-1999 was conditional and non-fulfillment whereof by the appellant-bank has resulted in dismissal of its claim. More-over, as the controvercy between the parties has been finally settled between them .Through consent decree dated 4-11- 1999, therefore, the instant suit is hit by the principle res judicata as spelled out in section 11, C.P.C., which reads as follows:-- "11. Res Judicata.---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 or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."
' The above provisions of law lead to the conclusion that the instant suit is not maintainable and appellant-Bank is estopped to bring a fresh suit against the respondent on the subject-matter which stood resolved through the aforesaid consent decree, hence, the learned banking court has rightly accepted the respondent's application and dismissed the appellant-Bank's suit. This view is supported by, the case law reported in PLD 2004 SC 1987, which reads as follows:-- "---S. 11 Res judicata principle of---Object--Principles---Finality should impart to judicial decisions and if a case is res judicata, it may not be reopened so as to be adjudged again---Once a matter between the parties to a suit or proceeding is decided and the decision has become final either because no appeal lies or an appeal was taken or if taken, it was dismissed, none of the parties shall be allowed to canvass the same matter again in a subsequent suit or proceedings between the same parties and as a result of the application of principle of res judicata as embodied in S. 11, C.P.C. All future litigation at any length between the parties must proceed or the presumption of correctness of the previous decision.
' Res judicata is a rule of universal law pervading in every well-regulated system of jurisprudence, and is put upon two grounds, embodies in various maxims of the common law; the one of public policy and necessity, which makes it in the interest of the State that there should be an end to litigation-interest republicae ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause."
' In the light of the above-cited case-law, the contention of the learned counsel for the appellant- Bank that through the impugned order dismissal of the suit under Order VII, Rule 11, C.P.C. Is wrong as learned Banking Court could only reject the plaint and not the suit, but by dismissing the suit, it has deprived the appellant-Bank of its right to file a fresh suit under Order VII, Rule 13, C.P.C., is without force, as after dismissal of the appellant-Bank's claim for its failure to fulfil the condition imposed in the decree dated 4-11-1999, it cannot raise the same again through another or subsequent suit due to the bar of section 11, C.P.C. Needless to point out that the claim raised in the instant suit has already stood finally resolved with the consent of the parties to the suit which has attained finality as no one challenged the same before any forum. Therefore, the learned Banking Court has rightly dismissed the suit of the appellant-Bank through the impugned order/decree, which is in accordance with law-and requires no interference by this Court.
8. In view of what has been discussed above, this appeal is without merit, therefore, dismissed. No order as to costs.