' RANA BHAGWAN DAS, J.---This appeal under section 15 of the Civil Procedure Code (Amendment)
Ordinance, 1980 is directed against the order dated 6-12-1990 passed by a learned Single Judge staying the proceedings in Suit No,1190 of 1989 brought by the appellants against the respondents.
2. The crux of the dispute between the parties revolves around alleged illegal dispossession from tenements on Plot :No,D-9, Rizvia Cooperative Housing Society Ltd., Karachi which was let out to the appellant No,1 where he was running an eye-clinic by virtue of lease agreements dated 29-3-1968 and 1-1-1972 respectively. Appellant No,2 is the wife of appellant No,1 and is an specialist in fitting and prescribing "contact lenses" and "low visual aids" and assists the appellant No, 1 . Sometimes in 1979-80 landlord refused to accept the rent from appellant No,1 prompting him to institute a Miscellaneous Rent Application No,276 of 1980 in the Court of Vth Rent Controller, Karachi in which he was permitted to deposit the rent. The landlord died sometimes in December, 1985 leaving his widow and three daughters as legal heirs from whom the property was purchased by respondent No, 1 . After the acquisition of proprietary rights, it is said that respondent No,1 through respondent No,2 who was then serving as S.S.P. At Karachi started harassing the appellants with imminent danger of unlawful dispossession of appellants from the said premises. In the circumstances, appellant No,1 was obliged to file Suit No,1395 of 1986 renumbered as Suit No,61 of 1988 in the Court of VIII Civil Judge, Karachi-West seeking permanent injunction for restraining the respondent No,1 or anyone else acting or claiming through or under him from disturbing his peaceful possession. After the institution of such suit, an order for maintaining status quo was granted by the Court in his favour. Later appellant No,1 left for U.S.A. Leaving the eye clinic under the care and supervision of his wife i,e, appellant No,2. Essentially case of the appellants is that on the night intervening 23rd and 24th October, 1986 while appellant No,1 was out of Pakistan, respondent No,1 with the active connivance and in furtherance of a criminal conspiracy with the remaining respondents committed trespass in the tenanted premises and with the help of criminal elements illegally dispossessed the appellants by force and also unlawfully demolished and destroyed the said premises with the active assistance and cooperation of the area police and in complete disregard of status quo order passed by the Court. Later, on 21-4-1987 appellant No,1 filed Suit No,499 of 1987 renumbered as Suit No,529 of 1988 before the Xth Civil Judge, Karachi-West which is still pending decision.
3. In Suit No,1190 of 1989 appellants claimed that the cause of action to file this suit arose to the appellants against the respondents firstly on 23rd/24th October, 1986 when respondents Nos. 1 to 4 committed trespass and the appellants were forcibly and unlawfully dispossessed from the premises which were wrongly demolished and assets, properties, records and documents of the appellants were robbed, destroyed and misappropriated and again arose in July, 1989 when respondent No,1 started construction of a multi-storeyed commercial plaza on the plot in suit in violation of appellants' right and the said cause of action continued to subsist from day to day.
Appellants prayed for a judgment and decree seeking the following reliefs against the respondents: "(a) For declaration that the plaintiff No,1 being the lawful tenant at the rate of Rs,400 per month of the entire first and second floor of the immovable property constructed on Plot No,D-9, Rizvia Cooperative Housing Society Ltd., Karachi is entitled to occupy and possess the entire first floor and second floor of the said property on reconstruction/re-erection of whatsoever nature by the defendant No,1 or any person/persons claiming through or under him as owner/landlord of the said property.
(b) For permanent injunction restraining the defendant No,1, his agents, subordinates, employees, attorneys and/or any one else claiming or acting through or under him from constructing on the aforesaid plot bearing No,D-9, Rizvia Cooperative Housing Society Ltd., Karachi and/or from mortgaging/selling/leasing out/parting with possession, or enjoyment of the said plot of land or any portion thereof or any construction thereon either on the first or second floor in favour of any other person whosoever to the exclusion of the plaintiff No,l.
(c) For mandatory injunction directing the defendant No,5, all its officers, employees and/or any one else acting on its behalf not to accord approval/sanction to the defendant No,1 for constructing multi-storey commercial building on Plot No,D-9, Rizvia Cooperative Housing Society Ltd., Karachi till the defendant No,1 agrees to accommodate and give/hand over physical possession to the plaintiff No,1 of the entire first and second floor of the proposed building on plot of land bearing No,D-9, Rizvia Cooperative Housing Society Ltd., Karachi and/or in case such sanction has already been accorded then to withdraw, suspend/cancel the same.
(d) For mandatory injunction directing the defendant No,1, his agents, subordinates, employees, attorneys, successors and/or any one else acting or claiming through or under him to hand over the physical possession of the entire first and second floor of the said proposed building on Plot No,D-9, Rizvia Cooperative Housing Society Ltd., Karachi on reconstruction/erection to the plaintiff No,1.
(e) For possession of the first floor and second floor of the proposed building on its reconstruction/erection on the plot of land bearing No,D-9, situated in Rizvia Cooperative Housing Society Ltd., Karachi.
(0 For recovery of total sum of Rs,1,98,00,000 from the defendants Nos.1 to 4 jointly and/or severally as compensation/damages/loss caused to the plaintiffs by illegal acts of the defendants Nos.1 to 4 with interest thereon at the rate of 15% per annum from the date of this suit till its actual realisation from the said defendants."
4. During the pendency of the suit before the learned Single Judge respondent No,1 moved C.M.A.
No,2779 of 1990 under section 10 read with section 151, C.P.C. Seeking stay of further proceedings on the ground that two suits so filed by appellant No,1 were pending between the same parties and the matter in issue in the three suits was directly and substantially same. Upon hearing learned counsel for the parties, learned Single Judge was pleased to stay further proceedings in the subsequent suit pending on the original side of this Court which has been impugned in this High Court Appeal.
5. In order to analyse and comprehend the respective contentions of the parties and the sole point for our consideration in this appeal, it would be necessary to reproduce the provision of section 10 of the Code of Civil Procedure which reads as under:-- "10. Stay of suit.--No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in (Pakistan) having jurisdiction to grant the relief claimed, or in any Court beyond the limits of (Pakistan) established or continued by (the Central Government **) and having like jurisdiction or before (the Supreme Court)."
Plain reading of the aforesaid provision of law leads to an irresistible conclusion that five essential ingredient: must be fulfilled before directing the stay of subsequently instituted suit:
(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.
6. 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.
7. A critical analysis and evaluation of the pleadings in the earlier suits tends to show that Suit No,61 of 1988 was confined to the prayer for a permanent injunction restraining the respondent No,1 from disturbing or interfering with the appellants' peaceful possession. In the second suit i,e, Suit No,529 of 1988 it would appear that it was filed under the provisions of section 9, Specific Relief Act seeking a judgment and decree for possession of the property in suit on the averments that during the pendency of the earlier suit, appellant No, I was illegally and forcibly dispossessed from the premises in suit. In the face of changed situation, it may perhaps be observed without any fear of contradiction that the relief of permanent injunction asked for in the first suit was frustrated and the suit rendered infructuous by reason of subsequent developments. It would further appear that in Suit No,1190 of 1989 brought before the Single Judge, appellant No,2 was impleaded as plaintiff No,2 seeking additional reliefs of declaration, injunction and compensation/damages by impleading apart from the respondent No,1, the other respondents by introducing another cause of action with regard to raising of construction of a multi-storey building on the plot in suit in July, 1989. Be that as it may, the first cause of action with regard to the relief for possession remained intact and unamended for which relief Suit No,529 of 1988 was already pending. As regards the additional reliefs with regard to permanent as well as mandatory injunctions against the respondent No,1, it is pertinent to note that such right if any might accrue to appellant No,1 if he succeeds in obtaining a judgment and decree for possession owing to the act of unlawful and forcible dispossession from the premises at the hands of respondent No,1. With regard to the prayer for damages/compensation due to forcible and unauthorised dispossession and loss of equipments as well as professional income and on account of mental torture and physical discomfort, this ground was available to the appellants on the date of filing suit for possession which was perhaps abandoned and not pressed into service for the reasons best known to them. It may further be observed that in Act the substance of the earlier suit and subsequently instituted suit before this Court remains one and same inasmuch as parties and the subject-matter of the suits are one and the same.
8. The relief for grant of injunction as well as damages/compensation would also essentially depend on the success of appellant No,1 in Suit No,529 of 1988 if he is able to establish that he was dispossessed from the premises except in due course of law and he as well as his wife were deprived of professional income, valuable scientific and medical equipments and on that account suffered mental torture, loss of reputation and discomfort. It may thus be safely concluded that sum and substance and the vital issue in both the suits directly and substantially is the same. The intention and spirit behind the scheme of section 10, C.P.C. Appears to avoid duplication of trial on same cause of action and to obviate the conflict of decision as well as unnecessary labour on adjudication of a common suit. Technically speaking it may be said that the Civil Judge would not be competent to grant the relief of damages in the sum of Rs,1,98,00,000 for want of pecuniary jurisdiction but the fact of the matter remains that the appellants might be entitled to such relief only on proof of forcible and wrongful dispossession from the premises and suffering of mental as well as mandatory loss on account of the facts pleaded in the subsequent suit. Learned Single Judge has rightly referred to the precedent cases and assigned valid and strong reasons for arriving at a conclusion that it was a fit case for stay of proceedings. Alternatively it may be pointed out that the proceedings in the subsequent suit are deemed to have been stayed in order to secure the ends of justice and to suppress the mischief within the meaning of section 151 read with section 94, C.P.C. In fact and in law, no exception can be taken to the conclusion drawn from the facts and circumstances of the case.
9. Realising the weakness and infirmity of the cause, learned counsel submitted that in exercise of the powers under section 24, C.P.C. This Court may order the transfer of the suits pending before the Civil Court to this Court but we think that this course of action is not open to this Court as no such ground was urged before the learned Single Judge. Furthermore with the amendment in Sindh Civil Courts Ordinance, 1962 jurisdiction of the District Court at Karachi having been raised to try suits not exceeding Rs,5 lakhs, instant suit would no longer be triable in the High Court and shall be deemed to stand transferred to the Court of Senior Civil Judge having jurisdiction.
10. Before parting with this judgment, it may be pointed out that on being called upon to state the fate of the suit before the Civil Court, both the learned counsel expressed unawareness about the progress in the suit which has been pending for over a decade before the Civil Court. Instead of pursuing this appeal for eight years, it would have been in the fitness of things and in the larger interests of justice had the appellants pursued the suits instituted earlier in point of time. With these observations, we find no substance and merit in this appeal which must fail and is hereby dismissed with costs.