1. ' This is an application for leave to defend. The plaintiff in the suit is son of the defendant. The suit is based on a promissory note for a sum of Rs,15,00,000 (Rupees Fifteen Lakhs). Recitals in the plaint are that the plaintiff was carrying on partnership business alongwith the defendant in the name and style of Iran and Bukhara Palace in Saddar, Karachi. Allegedly, while the business was continuing, the defendant on 7-4-1986 took a loan of Rs,15,00,000 from the plaintiff for his business and executed a demand promissory note and a receipt in the said amount and delivered the same to the plaintiff. Besides the defendant, as security for repayment, also allegedly agreed not to sell, transfer or mortgage industrial Plot No,115/27, situated in Korangi Industrial Area, Karachi, till such time as the loan amount was repaid. Copies of the promissory note, receipt of payment and referred agreement, all dated 7-4-1986 are attached with the plaint. The defendant is said to have retired from the above-said partnership business on 1-2-1988. Contrary to the commitments of the defendant, he is said to have gifted the Korangi Industrial plot to his daughter, Mst. Rukhsana Faisal, on 31-3-1988. The plaintiff demanded payment of the loan amount from the defendant through legal notice dated 14-7-1988. On 23-7-1988, the plaintiff also got a public notice issued in the eveninger "Star", warning all concerned not to purchase the Korangi plot in question as the same was subject to the rights and liens of the plaintiff. On 17-12-1988, the present suit was filed under Order XXXVII of the Code of Civil Procedure.
2. ' The defendant, plaintiff's father, in his application for leave to defend, submitted on 30-1-1989, maintains that all the above-referred documents, namely, the promissory note, the receipt of payment and the agreement are forged and do not bear his signatures. It is maintained that the defendant has been financially very sound and gifted Rs,10,00,000 to his son Abdul Sami, and Rs,1,50,000 to the plaintiff, also his son, in 1985 and in support he has filed Photostat copies of relevant Declarations of gift. He has sought comparison of his signatures on these documents with those relied upon by the plaintiff, contending that such signatures, which were shaky in 1985, could not have become more fluent in 1986, as the relevant documents would tend to show. The defendant also points out that the revenue stamps, on the alleged promissory note as well as on the alleged receipt do not even purportedly bear his signatures, which circumstances also negates the effectiveness of such documents at law, if any. Besides, it is urged, that none of these documents in original, were filed alongwith the plaint thereby contravening the provisions of Order VII, rule 14 of the Civil Procedure Code. It is next pointed out that the alleged receipt does not even purportedly show any attestation by witnesses even though the alleged agreement of the same date does show that, evidencing that all the three documents under reference are forged and fabricated, as maintained by the defendant. As a probable cause for these alleged perversions on the part of the plaintiff is cited the circumstance of the plaintiff having been infuriated because of the defendant having gifted the referred Korangi plot to his daughter Mst. Rukhsana Faisal on 31-3- 1988, the latter fact having been admitted by the plaintiff himself. Above all, the defendant has for the first time revealed that another suit viz. Suit No,547 of 1988 was filed by the plaintiff in this Court for declaration and injunction against the defendant on 27-7-1988 in which suit, on maintaining that the defendant had taken a loan of Rs,15,00,000 from the plaintiff on 7-4-1986 and having executed the above-said agreement dated 7-4-1986 and not only not having repaid such amount but even attempting to dispose of the Korangi plot in question to prospective buyers, necessary declaration and permanent injunction were sought. The defendant claims that the present suit, directly and substantially, involving the same issues as in Suit No,547 of 1988, which is the earlier instituted LIS, is liable to be stayed. As a consequence of the assertions last mentioned, I had on 6- 5-1990 directed that Suit No,547 of 1988 be also placed with this suit so as to examine how for the said suit is relevant to the controversy in the instant one.
3. ' The only question before me is whether the defendant has made out a case for grant of leave to defend and, if so, whether the leave should be conditional or unconditional. In the context of grant of leave, the Court is required to examine all questions which can or may arise by way of defence, as deducible not merely on the basis of what the defendant pleads or says in relation to his application for leave to defend but with reference to the entire record before the Court. In the first place, I am satisfied that the questions raised by the defendant on applying for leave, prima facie, have substance, merit due examination and a case for grant of leave is made out.
4. ' In addition, I was surprised to find that in Suit No,547 of 1988, the above-referred suit based entirely on the alleged agreement dated 7-4-1986 touching the Korangi Industrial plot, nothing whatever is said about the promissory note and receipt, each in the sum of Rs,15,00,000, which are the basis of the present suit, even though all the three documents are purportedly of the same date. What is more, in the legal notice dated 14-7-1988 from the side of the plaintiff and the public notice taken out in the eveninger 'Star' no reference whatever to any of these documents, namely, the promissory note and receipt aforesaid is made. The matter does not stop here. Plaintiff, who admittedly is a son of the defendant, has gone to the length of not even mentioning in the plaint of the present suit the factum of his having filed Suit No,547 of 1988 and its pendency in this very Court. The rule with regard to the imposition of conditions in grant of leave is that unconditional leave cannot be granted in cases where the possibility of the defence being a sham one cannot be overlooked. On the same principle, and indeed as an extension of it, I am of the considered opinion, that the defendant would be entitled to unconditional leave where as regards the plaintiff's claim, such being frivolous, vexatious or otherwise untenable cannot be ruled out. In view of what has been urged in defence and what has been noted in this paragraph, it would not be unreasonable to entertain doubts about the plausibility of the claim in this suit and, therefore, the defendant is entitled to an unconditional leave.
5. ' It has been maintained on behalf of the defendant that the present suit is liable to be stayed as the two suits directly and substantially involve the same issues. In support may be cited the case of Habib Bank Ltd. v. Ali Muhtaram Naqi (PLD 1987 Kar. 102), a decision of lbadat Yar Khan, J., of this Court. On the principles, which have found favour with the learned Judge the present suit could be stayed involving, as it may, the same or similar controversies, which might mature into issues in due course tinder Order XIV of the Code of Civil Procedure. However, to stay or not to stay a suit is a matter, which is dependent on the Court, trying the subsequently instituted suit, coming to the conclusion that such subsequent suit raises a matter in issue, which is also directly and substantially in issue in a previous instituted suit between the same parties, or parties under whom they or any of them claim, litigating under the same title. Where the plaints in the two suits are identical and the lis is between the same parties or through whom they or any one of them claim the subsequent suit may be stayed immediately as soon as such prayer is made and the result of the examination thereof is positive. In other cases where the plaints in the two suits are not identical but all the material taken together leads to the conclusion that the matter in issue is the same or substantially the same an order of stay :may again be made. However, even where a stay appears to be feasible nay even warranted, the Court, even though the language in section 10 of the Code of Civil Procedure is mandatory, should not resort to section 10, C.P.C. And stay the suit j provided that there is some superior norm to which the suit may be subject.
6. ' Elaborating what has been said above, even though the matter in issue directly and substantially in the two suits involved here may be the same a more crucial question is whether the subsequent suit may or may not be barred under Order II, Rule 2, C.P.C, such provision enjoining that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and that a person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs but if he omits to sue in respect of such claim or relief he shall not afterwards sue for such claim or relief. For the purposes of this rule an obligation and collateral security for its performance and successive claims arising under the same obligation shall be deemed to constitute but one cause of action. On such premises, it would unescapably arise for consideration whether the plaintiff in Suit No,547 of 1988 had omitted to sue with reference to the promissory note and the receipt purportedly dated 7-4-1986, while only suing under the collateral agreement of the same date and whether the present suit would or would not be hit by Order II Rule 2, C.P.C. On this basis the plaint in the present suit may be liable to be rejected under Order VII, Rule 11, C.P.C. Or, at best, the suit may be liable to be dismissed on totality or facts, upon the question having been put to trial. In this situation, the present suit being open to serious objections under Order II, Rule 2, C.P.0 as to its very maintainability, it seems to me that such is a superior norm and pending examination thereof, this suit cannot be stayed.
7. ' However, upon grant of an unconditional leave to the defendant, in terms as above, it would appear in the interest of justice that the two suits are placed together for examination and further proceedings, so that it becomes possible to examine the real controversies in their entirety. .