1. ' This is an application under section 12(2) read with section 151, C.P.C.
2. ' The facts forming the background of this application are that the plaintiff Aftab Khalid Shaikh had filed Suit No, 345 of 1989 against the Defendants/Applicants All Ghulam and Muhammad Khan Junejo for cancellation of agreement, recovery of possession, damages and permanent injunction.
3. These defendants remained absent in spite of service. On 7-6-1989 Mr. Shamim Ahmad, Advocate appeared on their behalf and made an application for setting aside the order of Addl. Registrar debarring them from filing written statement. The application was granted on condition that the Defendants should pay Rs,1,000 to the Plaintiff's counsel within two weeks and four weeks were granted for filing the written statement. The Defendants did not file written statement, nor did they pay Rs,1,000 to the counsel for the plaintiff. Instead an application for extension of time was made.
4. The said application came to be dismissed by my learned brother Mr. Justice Saeeduzzaman Siddiqui on 15-10-1989. Thereupon the case was fixed for final disposal and decreed ex parte on 5- 12-1989. This application has been made for setting aside the said judgment and decree. H.CA. Was filed by defendants against order dated 15-10-1989 which too has been dismissed in limine.
5. ' The main ground urged by the applicants' counsel in support of his application is that Defendant No,1, prior to the filing of the present suit, had filed Suit No, 46 of 1987 against the plaintiff, Deputy Commissioner Sanghar and Government of Sindh before the Senior Civil Judge, Shandadpur for specific performance of the contract and recovery of Rs,12,00,000 and injunction, which also relates to the same subject-matter. Hence the present suit was liable to be stayed under section 10 C.P.C.
6. The plaintiff deliberately concealed this fact from the notice of this Court. Thus he succeeded in obtaining above decree in this suit which is illegal, void and non-existent in the eyes of law.
7. ' The contention of the applicant does not hold any water. A decree passed contrary to the provisions of section 10 C.P.C. Is not a nullity and cannot A be treated as void or non-existent, in the eyes of law. Reference in this connection may be made to AIR 1937 Nagpur 132 (Gangaprashad and others v. Mt. Banaspati) and AIR 1919 Lah. 294 (Sheopat Rai Warak Chand).
8. ' In Nagpur case the proceedings for filing of an award numbered as a suit were tried and decided, though an earlier suit on the same subject-matter was pending between the parties. The decision in the arbitration suit was taken in appeal, inter alia, on the ground that the arbitration suit should have been stayed under section 10 C.P.C. On the other hand it was argued that neither section 10 C.P.C. Nor any other section prescribes a penalty for proceeding in spite of the prohibition and so the irregularity of doing so would not be fatal to the proceedings, but would be curable either under section 99 or the principle underlying it. It was held by the Court as follows:-- "I need not consider any of these points in this case. Mulla points out at p 35 of his Civil Procedure Code that the institution of a second suit is not barred by S. 10; all that it says is that the trial of the suit cannot be proceeded with. It is consequently a rule of procedure pure and simple, and rules of procedure in civil cases can be waived with the consent of the parties: 3 Luck 314 at 321. The parties here not only waived their right to have the other suit stayed but expressly asked that it should proceed and be tried by the same Court along with the present suit. This was done, and the evidence recorded in this case was, by agreement, treated as evidence in the other. Therefore, neither side can now turn round and challenge the validity of these proceedings because of S. 10."
9. ' In the Lahore case the decree was passed ex parte by a Munsif. It was sent for execution to another Munsif under Order 21 Rule 6 C.P.C. The judgment-debtor objected to the decree being executed against him on the ground that it was void and contrary to the provisions of section 10, C.P.C. The Munsif, however, held that it was not open to him to go into the question of validity of the decree and disallowed the objection. Scott- Smith, J. Of Lahore High Court held as follow:-- "I am not prepared to hold that a decree passed contrary to the provisions of S. 10, Civil P.C., would be a nullity and can be disregarded in execution proceedings. The case in which the decree was passed was tried ex parte and therefore, no objection was raised under S.10, Civil P.C. It would, in my opinion, be anomalous if the defendant, who did not appear during the trial of the suit could raise such an objection for the first time in execution proceedings. I agree with the decision in Hari Govind Kulkarni v. Narsingrao AIR 1914 Bom. 27=23 I.C. 123 =38 Bom. 194) above-quoted and dismiss the appeal with costs."
10. ' I, am therefore, of the clear view that if the parties, despite the provisions of section 10, C.P.C., allow the Court to proceed with the trial of subsequently instituted suit, then the decree passed in such suit, though contrary to section 10, C.P.C. Will be valid as section 10, C.P.C. Only enacts a rule of procedure.
11. ' In 1981 CLC 443 Pakistan v. M/s. Agro Marketing Corpn. a learned Single Judge of Lahore High Court after taking into consideration a number of rulings on this point including (1) PLD 1961 Dacca 344, Jamini Kanta Roy Chowdhry and others v. Aswint Kumar Haldar and others, and (2) PLD 1970 Lah. 41, Muhammad Younus v. Nargis Sultana, held as follows:-- "14. In a case like the one in hand where two suits are sub judice before the same Court, simultaneous hearing through consolidation is conducive to the administration of justice. Section 10 is procedural in character. Despite the fulfilment of the requirements of section 10 C.P.C. The parties to the suit may not move the Court to stay the subsequent suit. The decree passed in the subsequent suit will not suffer from jurisdictional error. Section 10 does not relate to jurisdiction of the Court."
12. I am, therefore, of the clear view that the proceedings in suit No, 345 of 1989, though irregular, are not vitiated. It will be presumed that by not contesting it the Defendant had waived his right to have the subsequent suit stayed. Hence there is no merit in this application. The application has been made only to protract the proceedings and is an abuse of the process of the Court. I, therefore, summarily dismiss J. Misc. No, 22 of 1990.