ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Civil Revision Application No. S- 84 of 2020
[Agha Altaf Nabi & another versus Agha Abdul Nabi & others]
Date Order with signature of Hon’ble Judge
1. For orders on office objections as flag A.
2. For hearing of M.A No.499 of 2020.
3. For orders on maintainability.
12.01.2023.
Mr. Ghulam Dastagir Shahani, Advocate for the Applicants.
Mr. Sajid Ali Gorar, Advocate for the Respondents.
Mr. Liaquat Ali Shar, Addl. A.G.
O R D E R
Adnan Iqbal Chaudhry J.- Applicants/plaintiffs had filed FC Suit No.160/2017 against the defendants for partition of immovable properties, both urban and agricultural, and for mesne profits. The dispute was settled out of court in terms of a written compromise agreement dated 02.03.2018, which was f.or private partition of said properties, whereupon FC Suit No.160/2017 was withdrawn unconditionally by the Applicants on 02.03.2018. However, the parties again came into dispute and the Applicants proceeded to file a fresh FC Suit No.43/2019 inter alia for partition of some of the urban properties that had been subject matter of the previous suit and the compromise agreement. The plaint of that suit was rejected by the trial court, so also by the appellate court on the ground that the fresh suit was barred by sub-rule (3) of Order XXIII Rule 1 CPC, in that, the Applicants/plaintiffs had not sought permission of the Court under sub-rule (2) for filing a fresh suit at the time of withdrawing FC Suit No. 160/2017; hence this revision.
2. Heard the learned counsel and perused the record.
3. It is manifest in sub-rules (2) and (3) of Order XXIII Rule 1 CPC that the fresh suit barred thereby is one which is in respect of the same subject matter as that of the suit which was withdrawn. If the fresh suit is in respect of a distinct subject matter, then such bar is not attracted. Both learned counsel have no cavil with that proposition.
4. In rejecting the plaint of FC Suit No. 43/2019 under sub-rule (3) of Order XXIII Rule 1 CPC, both the Courts below failed to appreciate that such suit had been brought on a cause of action that had arisen subsequent to the withdrawal of FC Suit No. 160/2017, viz. the breach of the compromise agreement dated 02.03.2018 with a specific prayer in clause (c) for enforcement of that agreement. In other words, the subject matter of FC Suit No. 43/2019 was the compromise agreement dated 02.03.2018 which was not, and could not have been the subject matter of the withdrawn suit, and therefore the bar contained in sub-rule (3) of Order XXIII Rule 1 CPC was never attracted. Therefore, the impugned orders are erroneous.
5. Learned counsel for the Applicants acknowledges that FC Suit No. 43/2019 was filed essentially for specific performance of the compromise agreement dated 02.03.2018, and that too for part of the properties dealt by that agreement. He undertakes that the Applicants will confine the suit to such relief. As against that, learned counsel for the Respondents submits that the compromise agreement cannot be enforced in part for only some of its properties. Since that aspect of the matter has yet to be examined by the trial court before rejecting the plaint, the Respondents will be free to raise that defense before the trial court.
6. In view of the foregoing, and with consent of learned counsel, this revision application is allowed in following terms:
(i) the impugned order / decree dated 12.2.2020 passed by the Senior Civil Judge, Mehar in FC Suit No.43/2019; and judgment / decree dated 23.10.2020 passed by the District Judge, Dadu in Civil Appeal No.38/2020 are set aside;
(ii) FC Suit No.43/2019 stands restored for specific performance of the compromise agreement dated 02.03.2018 along with consequential relief with the observation that the Respondents will be free to take the defense that said agreement cannot be specifically enforced in part which shall be adverted to by the trial Court.
JUDGE
shabir