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Civil Petition for Special Leave to Appeal No. 397 of 1974, decided on 20th February 1975.

(On appeal from the judgment and order‑of the Lahore High Court, Lahore, dated 8‑10‑1973 in Regular Second Appeal No. 77 of 1973).

‑ S. 11‑Res judicata‑First suit being for possession of land and second challenging compromise decree passed in first suit‑Cause of action in two suits, held, entirely different, hence, no question of res judicata involved.

‑‑ O. VI, r. 4‑Fraud, plea of‑Issue as to fraud absent‑Plaintiff to be taken to have deliberately avoided to set up case of fraud in Courts below‑Question of fraud‑Cannot be allowed to be raised in Supreme Court.

S. 11 & O. VI, r. 4‑High Court's view holding case to be barred by res judicata though not sound yet decisions of Courts below indicating to have been based on petitioner's disentitlement to challenge compromise decree on ground of fraud‑No useful purpose, held, to be served by interfering in matter, ultimate decision being correct.

A. W. Butt, Advocate Supreme Court instructed by 1qbal Ahmad Qureshi, Advocate‑on‑Record (absent) for Petitioner.

Nemo for Respondents.

Date of hearing : 20th February 1975.

It appears that the respondents had filed a. suit being No. 22 of 1969 alongwith the present petitioner as a co‑plaintiff.. This suit was disposed of on the basis of a compromise on 5th February 1969.

The subject‑matter of the dispute in the said suit was the possession of agricultural lands measuring 204 kanals 19 rnarlas in Mauza Jasial.

This compromise, it appears, was made on the basis of the statement of the learned counsel appearing for the plaintiffs admitting that his clients had entered into this compromise.

The present petitioner, who was one of the co‑plaintiffs in that suit denied that she had given any such instructions to enter into the compromise.

She, accordingly, immediately filed a review petition through the same counsel before the same learned Judge for setting aside the compromise decree. The same was, however, dismissed on the 30th April 1970. She then filed Suit No. 275 of 1970 challenging the compromise decree on the ground that the compromise was wrongly entered into by the counsel who had no power or authority to do so and that the whole thing was a fraud practised by her co‑plaintiffs in the said suit No. 22 of 1969 against‑the petitioner.

In the second suit, however, only two issues were raised, namely:‑

(i) Whether the suit is barred by the principle of res judicata.

(ii) Relief.

No issue as to fraud was struck or suggested. The petitioner who was the plaintiff in the suit, also did not take any objection to the issues raised. No suggestion was made on her behalf to raise any issue relating to the fraud alleged by her in the plaint.

Evidence was, however, led with regard to the competency of the learned lawyer to enter into the compromise. Both Courts held that he had the necessary authority to enter into the compromise and, therefore, the petitioner was bound by his statement. The High Court has by a brief order disposed of the second appeal on the ground that the compromise decree is hit by the terms of section 11, C. P. C.

The petitioner now seeks special leave to appeal and it is contended on her behalf that the learned Judge in the High Court has entirely misconceived the scope of the appeal, for, no question of res judicata could possibly arise. The only question that could be raised was of estoppel.

The cause of action in the two suits was entirely different. The first suit was for possession of land. In the second suit the compromise decree on which the first suit was disposed of was challenged. Hence no question in of res judicata could possibly arise.

This may be so, but there is another difficulty in the way of the learned counsel, viz that in the absence of any issue as to fraud it must be take that the plaintiff' deliberately avoided setting up a case of fraud in the Courts below: She, cannot, therefore, be now allowed to raise this question in this final Court. No evidence has been led as to the fraud and, therefore, no finding can be given on that question In the circumstances although the High Court has referred to the principle of res judicata yet the examination of the judgments of the Courts below indicates that they had based their decision on the ground that the petitioner was disentitled from challenging the compromise decree. In the circumstances we do not think that any useful purpose will be served by interfering in this matter in which the ultimate decision seems to be correct. This petition is accordingly dismissed.

Petition dismissed.

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