' MIAN SAQIB NISAR, J.- The petitioners and respondents are the real brothers and sisters. According to the petitioners, respondent No,1/plaintiff had allegedly agreed to sell her share in the entire estate left by their parents through an agreement to sell, dated 28-5-1995, therefore, they brought a suit for the specific performance against her, which has been. Dismissed by the learned trial Court and the appeal admittedly is pending between the parties in the Court of learned Additional District Judge; subsequent thereto, respondent No,1 brought a suit for the administration and partition of the same estate, in which the petitioners moved an application under section 10, C.P.C., for the stay of the proceedings; this application has been rejected by the learned Trial Court, vide order dated 6-6-2007. Hence this revision petition.
2. Learned counsel for the petitioner states that the issue involved in both the cases directly and substantially is the same, and thus, as per the law laid down in the judgments reported as Syed Alauddin Ahmed v. Md. Mustafa (PLD 1971 Dacca 286), Muhammad Arif v. Abdul Qayyum (1991 CLC 442) and Attock Oil Company v. Ghaith Rashad Pharaon and others (1996 CLC 1657), the second suit is liable to be stayed.
3. Conversely, learned counsel for the respondents by relying upon the judgment reported as Muhammad Yaqoob v. Behram Khan (2006 SCM R 1262) argued, that in a similar case having identical factual features the learned Trial Court granted the stay of the second suit, such order was intervened by the High Court and the order staying the suit was set aside, but the two cases were consolidated and this order has been upheld by the Honourable Supreme Court, therefore, it is submitted, that by applying the ratio of this judgment the suit should not be stayed. It is also stated, that the issues in the two matter are not directly and substantially the same.
4. I have heard the learned counsel for the parties. It is not in issue that the suit property is the part of the estate left by the parents of the parties. It is also not in issue that Mst. Arifa Begum/respondent No,1 inherited her share in such estate according to Muhammadan Law.
However, the basic issue between the parties is as to who has defaulted in the performance of the admitted agreement to sell between them; it is the key question involved in the earlier round of litigation. If the appeal of the petitioners is thus accepted, obviously the suit for administration and partition cannot, in such circumstances, be decreed in favour of the respondent; but if it is dismissed, then the present suit shall proceed considering the suit property as co-owned by the parties, and the defence of the agreement to sell shall not be available to the petitioners. In view of the admitted features of the case, which have been highlighted above, I am of the considered view that the issue of the specific performance, which is the pivotal issue in both the matters, which requires the determination first, in the pending appeal of the petitioners and only thereafter the present suit can be detertnined. The judgment cited by the counsel for respondent No,1 is distinguishable on its own facts and is not applicable to the present matter. Resultantly, the impugned order is set aside and the suit of respondent No,1 is stayed. However, before parting I intend to issue a direction to the learned Appellate Court, where the appeal of the petitioners regarding the specific performance is pending, to decide the same within one month from the next date of hearing, which I am told is fixed for 6-10-2007 for arguments, and the service in that matter is complete. The revision petition is accordingly allowed.