1. MUSHIR ALAM, C.J. - Petitioner Tariq Ahmed Khan seeks transfer of suit No. 942/2006 presently pending in the Court of 1st Sr. Civil Judge Karachi (Central) to this Court to be clubbed with Suit No. 911/2009 as the valuation of the suit filed by the applicant is Rs. 1.5 million.
2. Respondent present in the Court contends that since he is not able to engage counsel and he deems the purpose of the justice would be served if. Case is transferred to the Court below to be tried where he will be able to purpose the matter without any difficulty. Mr. Rizwan learned counsel contends that when suit No. 911/2009 was filed the learned Court below had no jurisdiction and this Court cannot confer any jurisdiction, which did not vest in the learned Court below. In support of his contention he has placed reliance on the case of Multan Electric power Company Ltd,, v.
3. Muhammad Ashiq and others (PLD 2006 SC. . 328), para 12 of the judgment which resounds the jurisdiction vested in the Court cannot be conferred or taken away even by consent. He also placed reliance on the case of Dr. Haider AH Mithani and other v. Ishrat Swaleh and others (PLD 1999 Karachi 81) to urge in a suit which involves question of facts and law it is desirable to avoid the duplication of Trial on same cause of action. The Court enumerated the grounds on which subsequently suit may be stayed and it was ruled as enumerated as follows:-
(1) The matter in issue in both the suits must be directly and substantially the same.
(2) The previously instituted suit must be competent in a Court of competent jurisdiction.
(3) The Court before which the previous suit is pending must be competent to grant the relief in the subsequent suit.
(4) Both the suits must be between the same parties or their representatives, and
(5) The parties must be litigating in both the suits under the same title.
4. Where all the aforesaid conditions are fulfilled it is incumbent upon the Court trying the subsequently instituted suit to stay further proceedings but if all the conditions for the exercise of jurisdiction under section 10, C.P.C. Are not strictly fulfilled in order to achieve the ends of justice, the suit may be stayed under section 151, C.P.C or trial of the two suits may be consolidated.
5. From the above it is noted in case where it is not possible or desirable to stay the proceeding of the subsequently instituted suit next Could desirable is for consolidation.
6. I have heard the arguments and perused the record.
7. Indeed in the instant matter before this Court, Respondent Abid Hussain has filed a suit No. 942/2006 for specific performance of the purported contract dated, 4.1.1999 and consequential injective relief in respect of property bearing No. A-635 Section 11-B, North Karachi, Karachi measuring 240 sq. Yds., whereas the Applicant Tariq Ahmad Khan filed Suit No. 911/2009 for permanent injunction cancellation of documents and declaration in respect of the very property on the ground, inter alia, that the transaction claimed in the suit filed by Abid Hussain is based on fabricated documents and lease to cheat and deprive the applicant of his property. The suit was filed in the High Court in June, 2009 it is admitted position no evidence is recorded even in both suits though written statement has been filed. Cases where counter allegations are made in respect of the some purported transaction more particularly where a suit for specific performance is filed and a suit for cancellation of the documents on the basis of specific performance is instituted such nature of claims are desirable to be proceeded together as controversy is between the same party and resolve the same controversy as Court advised in the case of Haider Ali Mithani PLD 1999 Karachi 81 at page 85 as reproduced above that trial of the suits are desired to be consolidated instead of stay the proceeding of the subsequent suit in the cited case also it seems the jurisdiction of the High Court was enhanced and was accordingly not considered to be tried by the High Court and was transferred to the Court below.
8. In the instant case the jurisdiction of the Court has been revised under the Sindh Civil Courts Act 1962 through amendment made in section 7 whereby the jurisdiction of the Court of District Judge in the Karachi District is enhanced upto Rs. 15 million and such enhancement of jurisdiction is effective from 2.3.2011, therefore, w.e.f 2.3.2011 the Court below now has jurisdiction to try suits in respect of claim which does not exceed Rs. 15 million. Suit filed by the opponent was earlier in time and since now the jurisdiction of the Court below has also been enhanced to Rs. 15million, which is the valuation given by the applicant to his suit, therefore, I do not see or read any bar from transfer of subsequent suit which was filed in this Court to transfer the same to the Court having pecuniary jurisdiction as on today. Therefore, the suit filed by the applicant being No. 911/2009 pending adjudication in this Court is transferred to the Court of 1st Sr. Civil Judge to be tried together with suit No. 942/2006 and preferably concluded within six months and if parties concede appointment of commissioner evidence may be recorded through commission.