By consent application (CMA No. 4585/2019) is allowed.
2. Heard learned counsel for respective parties at length. Apparently , Suit No. 118/2003 filed by the applicant was dismissed. It would be conducive to refer the relevant paragraph of impugned judgment of trial Court, whereby plea of learned counsel for respondents that Suit No. 168/1995 was decreed against the applicant, as well as against other defendants, hence suit filed by present applicant falls within the ambit of resjudicata : .............. It is also so an admitted fact that the decree in Civil Suit No. 1681 1995 has already been given by the Court of $enior Civil Judge Malir against the plaintiff who were the defendants in the said suit regarding the property in question, but said decree not been challenged by the plaintiff. Plaintiff has also failed to establish that how he is the co-owner or co share(r) of the agricultural land bearing Survey No. 23, Deh Thano District Malir , Karachi. It is also pertinent to mention here that one Civil Suit No. 168/1995 has been filed against the plaintiff by the Defendant No 1 & 2, which was decreed by the Court, and the Court has cancelled the documents which were possession with the defendants of Civil Suit No. 168/1995, and present plaintiff was one of the defendant(s) of Civil Suit and said order/judgment not been challenged by the plaintiff in any Court of law and instead to file any appeal he file(d) the present suit for Partition against the defendants.
3. Admittedly , during pendency of suit, compromise application under Order XXIII Rule 3, CPC was preferred and Defendants No. 48 and 52 signed that application and suit was decreed in terms of compromise, that order is reproduced herewith: Parties and their counsel present. The contents of compromise were read over to them, they admit the same and also verify their signature. In view of above the suit stands disposed of in terms of compromise against defendants 48 and 52 and decreed against the remaining defendants declared, already exparte on 26.7.97, with no order as to costs. Application disposed of accordingly.
4. Admittedly, present applicant is not signatory of that compromise application and decree is in terms of contents of compromise application which, per settled law, shall be binding upon the signatories of such document (compromise) only and same shall not operate against others. Reference may well be made to the case of Muhammad Iqbal v. Khair Din 2014 SCMR 33 wherein it is observed as: "12 A consent decree, is a kind of agreement/contract between two parties with a superadded command of the Court but it would not bind a third party who was not party to the said suit..." It may also be added here that such like compromise legally cannot attain status of 'issue decided' which, once decided by a competent Court of law, shall be binding upon all to such extent unless the same is get set-aside by third party by resort of legal course.
5. Prima facie, the said compromise decree (contract), in any way, is not against the defendants. At this juncture, it would be pertinent to mention that resjudicata would apply when parties are same as well as subject matter and lis is decided on merits after framing issues, hence order dated 01.11.1997, whereby suit was decreed, is not falling in above ambit. Reliance may well be made to the case reported as Youuf Soap Factory v. Deputy Registrar of Trade Mark & Ors 2003 CLD 614 wherein it is held as: "8. As regards the argument that principle of res judicata are also applicable to the case in hand, suffice it to say that no conclusive determination of any of the issues between the parties has been made in the earlier litigation. It is only on account of their statements, which at the best, are in the nature of compromise that the matter was disposed of when it has been held that such compromise / agreement was illegal and unenforceable, the principle of res judicata would have no application.
Accordingly , resjudicata, decided in favour of defendants, was against the principles of civil administration of justice, thus, impugned judgments recorded by both Courts below are hereby set aside and the case is remanded back to the trial Court to decide the issue in question on the basis of evidence already brought on record after hearing the parties, preferably within one month.
6. Needless to mention that the trial Court shall not be influenced by the earlier judgment passed by the same Court.
7. Instant Revision Application is dispo sed of alongwith listed applications in the above terms. Office shall communicate this order to both Courts below alongwith R&Ps.