1. C.M.A. No. 6696/2004: By this application, the defendant No. 3 has prayed that the proceeding of the suit may be stayed, as the matter in issue is also directly and substantially in issue in previously instituted Suit No. 1747/1999 between the same parties.
2. Ahmad Pathan has filed counter-affidavit to the said application. He submits that cause of action of the present suit and the other suit are distinct and different and two suits have to nexus between them.
3. The defendant No. 3 has filed affidavit-in-rejoinder to the counter-affidavit filed by Ahmed Pathan.
4. The learned counsel for the defendant No. 3 submits that the provision of Section 10 is mandatory in nature and since both the suits are between the same parties in respect of the same subject- matter and the issues involved are directly and substantially same the subsequent suit. Is liable to be stayed. He relied upon following reported cases:---
(1) Habib Bank Ltd. v. A.I Mohtram. Naqvi (PLD 1987 Karachi 102).
(2) Attock Oil Company v. Ghaith Rashad Pharaon and others (1996 CLC 1657).
5. Suit No. 1747/1999 was filed by the defendant No. 3 in this matter against Shaukat A.I and others for specific performance of Agreement and permanent injunction, whereas the present suit was filed by Asad Pathan and others v. Shaukat All and others and the plaintiff in Suit No. 1747/1999 was impleaded as defendant No. .3 in this suit which was filed for declaration, possession, mesne profit and perpetual injunction.
6. The object of the provision appears to prevent the Courts of concurrent jurisdiction for simultaneously adjudicating and proceeding with trial of two suits in which the matter in issue is directly and substantially the same between the parties In respect of same cause of action for the same subject-matter and for the same relief. The other object of the section is to avoid conflict of opinion of two Courts. One test of applicability of Section 10 is whether, on the final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit.
7. The subject-matter of both the suits are same with the exception of few the parties are also the same. The case of action are different as well as the relief claimed in both the suits are also different. It appears that the issues in both the suits are different. If the suit filed by the defendant No. 3 bearing Suit No: 1747/1999 is decreed there will be no need to proceed with the subsequent suit, but if the suit of the defendant No. 3 is dismissed the instant suit has to be proceeded on merits. Instead of staying the suit, it will be appropriate to consolidate both the suits and to proceed the same together to avoid conflict of opinion.
8. The application is dismissed with no order as to costs. C.M.A No. 5345/2004: The application is allowed in the above terms. .