Through the instant appeal, the appellan t, Pakistan International Air Lines Corpo ration, impugns the order dated 05.06.2009 passed by this Court (while exercising civil original jurisdiction), where by application under Order VII, Rule 1 1 of Code of Civil Procedure, 1908 ("C.P .C.") filed by the appellant, was dismissed.
2. The record shows that on 30.01.1992, the respondent had filed a suit for recovery of Rs.30,24,098.98 against the appellant before the Court of the learn ed Civil Judge, Islamabad. The appellant contested the said suit by filing a written statement. From the divergent pleadings of the contesting parties, the learned Civil Court framed issues vide order dated 14.11.1992. Thereafter , the appellant filed an application under Order VII, Rule 11 C.P.C. praying for the rejection of the plaint in the respondent' s suit on the grounds that the suit was barred under Section 69 of the Partnership Act, 1932; that earlier an arbitration between the contesting parties had taken place which had culminated in an arbitration award; that after the arbitration award was rendere d, a settlement agreement was executed between the contesting parties on 03.04.1991; that the parties had jointly applied for the arbitration award to be set aside on the basis of the settlem ent agreement; that decree dated 14.04.1 991 was passed by the learned Civil Court in terms of the settlement agreement; and that in view of the said decree, the suit instituted by the respondent was barred by the principle of res judicata as well as Order II Rule 2 C.P .C.
3. Vide the impugned order dated 05.06.2009, this Court dismissed the said application. The said order has been assailed by the appellant in the instant appeal.
4. Learned counsel for the appellant made submissions in reiteration of its pleadings in the application under Order VII, Rule 11 C.P.C. Furthermore, he drew the attention of the Court to the arbitra tion award dated 14.02.1991 as well as the decree dated 14.04.1991 which was passed in terms of the settlement agreement dated 03.04.1991, and submitted that the suit instituted by the respondent after the said decree was clearly barred under the principle of res judicata. He further submitted that since the respondent / partnership firm was not registered, it could not have filed a suit for recovery . It was also asserted that the respondent' s suit was barred by limitation. Learned counsel for the appellant prayed for the instant appeal as well as the appellant' s application under Order VII, Rule 11 C.P .C. to be allowed and for the plaint in the respondent' s suit to be rejected.
5. On the other hand, learned counsel for the respondent submitted that the impugned order dated 05.06.2009 does not suffer from any legal infirmity; that this Court was correct in holding that the question whether the suit instituted by the respondent was barred by the principle of res judicata required the recording of evidence; that the respondent' s suit was not barred in terms of Section 69 of the Partnership Act, 1932; and that the respondent' s evidence has already been recorded and the case was fixed for the respondent' s documentary evidence when the application under Order VII, Rule 11 C.P.C. was filed only to delay the proceedings in the suit. Learned counsel for the respondent prayed for the appeal to be dismissed.
6. We have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
7. Since the primary ground taken by the appellant in its application under Order VII, Rule 11 C.P.C. was that of res judicata, we asked the learned counsel for the appellant to bring to our notice the earlier suit or arbitration petition instituted by the respondent. He submitted that the same was not on the record. He was also unable to assist us on the question whether the respondent in the subsequent suit had raised the same very claims as had been raised by it in the earlier proceedings. No assistance in this regard was rendered by the learned counsel for the appellant.
8. We are of the view that the question whether the suit for recovery instituted by the respondent was barred by res judicata would require the production in evidence of the record pertaining to the earlier proceedings. In the cases reported as 1999 SCMR 705 and 2013 CLD 451, it was held inter alia that in order to apply the principle of res judiciata , it was imperative for the Court to first determine whether the issue in question was raised, determined and decided in the former proceedings between the parties. In the instant case, the recording of evidence would enable the learned Trial Court to determine whether the respondent was re-agitating the claims which had been decided earlier through an arbitration award or were the subject matter of the settlement agreement dated 03.04.1991 between the appellant and the respondent. Indeed, limitation is a mixed question of law and fact.
However , the learned Trial Court would be expected to first determine whether or not the respondent' s suit is barred by limitation.
9. Since the evidence of the respondent has already been recorded, and the respondent only needs to produce the documentary evidence, we are of the view that the trial in the suit ought to continue and be concluded expeditiously .
10. In view of the above, the instant appeal is dismissed with no order as to costs.