ABDUL HAMEED BALOCH, J.---This Civil Revision Petition is directed against the judgment and decree dated 27.11.2015 passed by learned Additional District Judge, VI, Quetta (appellate Court), whereby the appeal filed by the plaintiff No.1 against the order and decree dated 20.04.2015 passed by learned Civil Judge-II, Quetta (trial Court) was allowed and the case was remanded to the trial court with direction to take evidence of the parties on the issues already formulated on 18.11.2014 as well as the additional issues and then to decide the matter strictly in accordance with law.
2. Brief facts leading to file the instant revision petition is that the plaintiffs/respondents Nos.3 to 13 filed a "Suit for Declaration, Cancellation of Mutation No.1893, Satisfaction of Consent Order and Decree dated 31.05.2005, passed by Senior Civil Judge, I, Quetta before the trial court with the following prayers: a) Declare that the defendant No.1 is bound to comply with consent order and decree dated 31.05.2005 in its letter and spirit by way of demarcating and, mutating the property mentioned in the clause (II) of compromise deed dated 28.05.2005 situated at Jan Muhammad Road, Quetta. b) Declare that the act of defendant No.1 with regard to non-compliance of order and decree dated 31.05.2005 is illegal, unwarranted and without any lawful justification. c) Through injunction the defendant No.2 be directed to cancel the partition mutation No.1893 attested on 09.05.2005; d) After cancelling the partition mutation, the defendant No.2 be directed to demarcate and chalk out Tatima of the property appeared at clause (D) situated at Jan Muhammad Road Quetta in metes and bounds and mutate the same in their respective shares; e) Through permanent injunction the defendant No.1 be restrained from constructing road over property-in-question prior to demarcation and mutation. f) Any other relief which this Hon'ble Court may deems fit and proper in the circumstances of the case is also solicited. g) Cost of the suit may also be awarded.
3. The defendant No.1 filed written statement and contested the suit on legal grounds. The trial court out of the pleadings of the parties framed the following issues:
1. Whether the plaintiffs have no cause of action against the defendant No.1?
2. Whether the suit of plaintiff is barred by time.
3. Whether the suit of plaintiffs is hit by resjudicata under Section 11 of C.P.C.?
4. Whether the plaintiffs are entitled to relief claimed for?
5. Relief.
4. The trial court after hearing both the parties, dismissed the suit vide order and decree dated 20.04.2015 being not maintainable. Feeling aggrieved from the order and decree passed by the trial court, the plaintiffs filed an appeal before the appellate court. The appellate court while exercising power under Order XIV, Rule 5, C.P.C., formulated the following additional Issues:
1. Whether the respondent/Defendant No.1 signatory of the compromise dated 28.05.2005?
2. Whether clause (I) of agreement dated 25.05.2005 is applicable on the respondent/defendant, if so, whether he has violated the same by narrowing the Road?
5. Consequently, the appeal was allowed vide judgment and decree dated 27.11.2015 and the suit was remanded to the trial court with direction to provide opportunity of leading evidence to the parties on the formulated issues as well as on the additional issues. Hence this petition.
6. The learned counsel for the petitioner contended that the order of the appellate court is without jurisdiction, as previously the same matter has already been decided by the court of competent jurisdiction, therefore, the party cannot agitate the same matter subsequently; that the principle of resjudicata is applicable as it is settled law where a matter has been decided by competent court of jurisdiction, cannot be re-opened; that the respondents have alternate remedy by filing execution application, but. they failed to do so. The learned counsel for the petitioner relied upon the following reported cases: PLD 1956 Lah. 760, 2000 CLC 1973, 1997 CLC 578
7. Conversely the learned counsel for respondent contended that the judgment of appellate court is according to law. The compromise is kind of contract, where the other party failed to meet the spirit of consent decree, the first cause of action accrued to the aggrieved party; that the trial court summarily framed the issues and without calling the evidence, dismissed the suit. He relied upon the following reported cases: 2009 SCMR 1268, PLD 967 Kar. 795, 1989 SCMR 1826, 1991 CLC 1526 and 1986 SCMR 849.
8. I have heard the learned counsel for the parties and perused the record with their able assistance. Perusal of record reveals that the petitioners filed a "Suit for Declaration, Cancellation of Mutation No.1893, Satisfaction of Consent Order and Decree dated 31.05.2005, passed by Senior Civil Judge, I, Quetta" before the trial court. The defendant No.1 filed written statement, by raising legal as well as factual grounds, stated that the replying defendant has no knowledge about the earlier suit nor the compromise has been signed, rather all the proceedings have been done in the absence of replying defendant. The trial court framed issues and decided the same without calling witnesses from the parties. Under Order XIV, Rules 1 and 3, C.P.C., issues are to be framed on the basis of material proposition of law of fact. Distinct and separate issues are to be framed for each proposition in dispute. It appears from the written statement that the petitioner neither signed the compromise nor had knowledge of earlier suit. The petitioner/defendant has categorically showed ignorance in respect of previous suit, whereas under Section 11 of C.P.C. phrase res judicata signified the matter which has already been adjudicated and determined by the court of competent jurisdiction. The present suit has different cause of action, in which the plaintiff sought relief for implementation of consent decree passed in 2005. The trial court did not decide the suit on merits rather disposed of the same on the basis of findings on issues that the suit is barred by resjudicata. The present suit constitutes fresh cause of action. The compromise decree is contract between the partis of suit and any breach of contract would give fresh cause of action to the aggrieved party. There is no cavil to the proposition that the consent decree is contract E between the parties. Reliance is placed on the case of Peer Du and others v. Dad Muhammad and others 2009 SCMR 1265. whereby the Hon'ble Supreme Court observed as under:
4. We have carefully examined the above mentioned contentions in the light of relevant provisions of law and record of the case. We have minutely perused the judgment and decree of learned Qazi, Zhob/Sherani, the judgment and decree passed by Majlis-e-Shoora, as well as the judgment, impugned. After having gone through the entire record and perusing the judgment as mentioned hereinabove, we are not persuaded to agree with the prime contention of Mr. Jamal Khan Mandokhail, learned Advocate Supreme Court that the suit should have been dismissed pursuant to the provisions as enumerated in Order VII, Rule 11, C.P.C. because the controversy has been set at naught completely by means of judgment dated 1-10-1985 passed on the basis of award which was made rule of the Court for the reason . that the earlier 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 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. 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. Whether a subsequent suit is barred by reason of section 47, Civil Procedure Code, 1908 depends upon the existence of a decree which is executable for the purpose of the reliefs sought to be enforced in subsequent suit whether an earlier contract is superseded by a later contract on account of a certain alteration, depends on whether the parties intended to rescind the original contract. It is possible to vary a term of an original contract in such a way as to keep alive the original contract.
Where a decree is passed on a compromise, the decree and not the compromise in the 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".
Arunachallam v. Sethupathi AIR 1925 Mad. 1260, C.J. Smith v. A. Kenny AIR 1924 Pat. 231, Jahuri Lal v. Kandhai Lal AIR 1935 Pat. 123, Hiralal v. Durga Bai AIR 1937 Nag. 413. Mitha v. Ramat Dass AIR 1937 Lah. 828, Amin Cotton Co. Ltd. v. Muhammad Jamal and Co. PLD 1967 Karachi 795, A.R. Khan v. P.N. Bogha through Legal Heir PLD 1987 SC 107, Haji Muhammad Asghar v. Malik Shah Muhammad Awan and other PLD 1986 SC 542, Abdul Wahab and others v. Habib Ali and others PLD 1969 Lah. 365, Muhammad Hussain and other v. Walayat Shah and others PLD 1959 Lah. 526, Zahirul Said Alvi v. Lachhmi Naravan AIR 1932 Privy Council 251, Surendra Nath Mitra and others v. Tarubala Dasi AIR 1930 Privy Council. 158, Sajjad Hussain v. Musarat Hussain Shah 1989 SCMR 1826.
5. It is worth mentioning that an identical question concerning compromise was discussed case titled Ramchandra Dec Garu v. Chaitana Sahu and others AIR 1920 PC 139, Chandoo v. Murlidhar and others AIR 1926 Oudh. 311 by referring 54 CJS para.314, Halsbury's Laws of England. Fourth Edition. Volume 37 para 382 and Volume 3 para.1118, and it was concluded that the only option available for an aggrieved party was either to file a review or institute a fresh suit. It can thus safely be concluded that the suit preferred on behalf of respondent was maintainable.
8(sic). If we agree with the view point as canvassed at bar by Mr. Jamal Khan Mandokhail, learned Advocate Supreme Court it would mean that a consent decree based on compromise can be violated and its compliance depends on the whims and wishes of a party and in such an eventuality no remedy would be available to an aggrieved party which does not appeal to logic and reason and more so it would make the provisions redundant as contemplated in Order XXIII, Rule 3, C.P.C.
In view of above discussion, the petition being devoid of merits is dismissed. The judgment and decree dated 27.11.2015 passed by learned Additional District Judge, VI, Quetta is hereby upheld with no order as to cost.