KAMRAN HAYAT MIANKHEL, J. The instant petition under section 12 (2) read with section 151 CPC has filed by the petitioners against order dated 02.03.2017 passed in C.R.No.111-A/2014, whereby revision petition was dismissed as withdrawn in terms of compromise.
2. The brief facts of the instant case are that the petitioners / plaintiffs (Mst. Maroof Jan widow and another) filed a suit for declaration against Zardad Khan and others (defendants)/respondents, which was dismissed vide judgment and decree dated 28.11.2011. Against the said judgment and decree, the petitioners filed appeal before learned appeal court, which was dismissed vide judgment and decree dated 12.02.2014. Thereafter respondents No.1 and 2 preferred revision petition before this court, which was dismissed as withdrawn in terms of compromise arrived at between the parties vide order dated 02.03.2017. Thereafter, the present petitioners filed review petition before this court, which was also dismissed as withdrawn vide order dated 24.06.2019 in order to challenge the order dated 02.03.2017 through application under section 12 (2) CPC, hence, this petition.
3. Arguments heard and record perused.
4. Perusal of the record reveals that the petitioners and respondents are maternal relative and both were at loggerheads due to landed property. The petitioners and respondents contested the suits upto this court and three revision petitions bearing No.398-A/2009, 111-A/2014 and 120-A/2014 were pending adjudication before this court, which were disposed of through compromise vide order dated 02.03.2017. The present petitioners filed review petition bearing No.03-A/2017 contending therein that the respondents have not adhere to the terms and conditions of compromise, therefore, order dated 02.03.2017 passed by this court is liable to be reviewed by restoring the revision petition bearing No.111-A/2014. This review petition was later on withdrawn vide order dated 24.06.2019 by the petitioners with permission to file an application under section 12 (2) CPC. The petitioners in their petition under section 12 (2) CPC have not denied about the factum of compromise but their main plea is that the compromise has not been adhere to in its totality. It will be advantageous to reproduce section 12 (2) CPC, which is as under:- "12. Bar to further suit. (1) Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.
(2) Where a person challenges the validity of a judgment, decree or order on the plea of fraud, misrepresentation or want of jurisdiction, he shall seek his remedy by making an application to the Court which passed the final judgment, decree or order and not by a separate suit."
5. The bare perusal of abovementioned Sub-section 2 of Section 12 CPC reveals that validity of the judgment, decree or order can be challenged on the plea of fraud, misrepresentation or want of jurisdiction. The perusal of application of compromise reveals that terms and conditions settled between the parties has been given in the same and the application is also signed by both the parties, so the contention of the petitioners that no settled terms and conditions of compromise between the parties is negated by compromise application itself, wherein the terms and conditions are stipulated in the application. Furthermore, the petitioners in Para 12 of the instant petition alleged that terms and conditions, which were settled through Jirga, were fulfilled by the respondents to some extent and it is by now settled law that nobody can blow hot and cold in one breathe. On the one hand, the petitioners allege fraud by stating that no compromise arrived between the parties and on the other hand state that the respondents have not abide by the terms of agreement in totality. The petitioners also in their petition in Para 12 categorically states that some mutations were attested in terms of the compromise but later on respondents No.1 and 2 deviated from the remaining terms and conditions of the compromise.
6. The consent decree based on compromise between the parties can safely be equated to that of a contract, breach whereof would give rise to the fresh cause of action and a fresh suit can be filed by an aggrieved person for the redressal of his grievances. Reference in this regard may well be made to the case of Peer Dil v. Dad Muhammad 2009 SCMR 1268, wherein it was held as:- "In such like eventualities the judicial consensus seems to be that "a compromise decree is a contract between the parties and its breach would give cause of action to the other party to approach the Court to seek remedy. Compromise decree is but a contract with superadded command of a Judge. It is possible to vary a term of an original contract in such a way to keep alive the original contract. Where a decree is passed on a compromise, the decree and not the compromise in decree bound the parties especially in view of the parties' intention, indicated in the compromise preceding the decree itself that a "decree should be obtained on the basis of the compromise".
7. The status of consent decree/compromise has been reaffirmed as nothing more than 'agreement between parties with superadded command of Judge' in a recent case of Muhammad lqbal and others v. Khari Din Through L.Rs and others 2014 SCMR 33.
8. The above dicta is sufficient to help me in concluding that in case of breach of any of the terms of the compromise decree/order, the aggrieved party would be, required to seek enforcement of such agreement (compromise decree) by filing an independent fresh suit because such breach would require determination of subsequent events and conduct of parties, which could not be determined by the Court which did nothing but dispose of the matter on basis of compromise (consents of parties). In the case of Peer Dil supra it was also observed as:- "4. judgment / decree being a consent decree was obviously passed pursuant to the provisions as enumerated in Order XXIII, rule 3, C.P.C. and being a consent decree based on compromise between the parties can safely be equated to that of a contract, breach whereof would give rise to the fresh cause of action and a fresh suit can be filed by an aggrieved person for the rederessal of his grievances."
9. It is not the case of petitioners that they have not entered into compromise and the consent decree is passed without their consent and it is not the case of the petitioners that undue influence has been used in obtaining the compromise decree and the only ground so taken by the petitioners was that the application for withdrawal was signed outside the court by giving chance to read the application but this fact is belied because in Para 10 of the instant petition, the petitioners themselves state that they have attested mutations in terms of compromise decree but remaining terms of compromise has not been fulfilled by the petitioners. So keeping in view the above averments, the petitioners failed to satisfy this court about what fraud and misrepresentation or undue influence has been committed by the respondents.
10. For what has been discussed above, this petition being bereft of any merit, is hereby dismissed.