In this revision application the applicant has prayed that the suit filed by the respondent being Suit No,269 of 1994 in the Court of Third Senior Civil Judge, Karachi, Central, may be stayed. As the application filed by the applicant who is respondent in the said suit was refused vide impugned order, dated 16-7-1995 passed by the trial Court.
2. Brief facts of the case are that the applicant filed Suit No,40 of 1986 in this Court against the respondent and K.D.A. as well as Sub-Registrar Central Record, Karachi and prayed for the following relief:--
(a) to declare that the plaintiff is the owner of the Property bearing No,B-3/C (area 12' x 8') under the upstairs situated in U.K. Square, Block No,16, Super Highway Karachi;
(b) that since the defendant No,1 has no right or title in the said property hence the lease deed executed in his favour by defendant No,2 is liable to be cancelled by the defendant No,3 and in its place the lease deed is to be executed by the defendant No,2 in his favour and the mutation carried out accordingly by the defendant No,2;
(c) that the mandatory injunction thereby directing the defendants Nos.2 and 3 to cancel the said lease deed and to execute the lease deed in its place in favour of the plaintiff be issued;
(d) that any other relief deemed fit and proper be also granted to him;
(e) that cost of the suit be borne by the defendant.
The respondent filed written statement in this Court. The suit filed by the applicant was once - dismissed, but subsequently, it was restored. Against the restoration application the respondent is said to have filed High Court Appeal. The possession of the disputed premises is with the applicant.
3. Due to the change of pecuniary jurisdiction the respondent filed Suit No,269 of 1994 in the Court of IIIrd Senior Civil Judge and prayed for the following relief:--
(a) Declaring that the plaintiff is the sole and exclusive owner of the shop premises bearing No,3/C, Block No, "B" Ground Floor of U.K. Square, Plot No,ST-2/B, Block No,16, in Federal "B" Area, Karachi.
(b) For possession. Ordering the eviction of the defendant from the said shop premises, directing him to hand over its vacant and peaceful possession to the plaintiff.
(c) Granting permanent Injunction against the defendant, restraining him, his agents, servants and all other persons claiming through, under or in trust for him, in any way or manner, from claiming the ownership of the said shop, in any way, manner or before any authority or Government, local bodies or autonomous bodies.
The applicant has filed written statement and is contesting the case.
4. The property in relation to which the declaration has been sought is same. The parties are same.
The applicant has added K.D.A. and the Sub-Registrar because lease has been executed in favour of the respondent and the relief has been sought for cancellation of lease, therefore, K.D.A. and the Sub-Registrar were made party as co-defendants in Suit No,40 of 1986.
5. In the above background the applicant filed an application seeking stay of Suit No,269 of 1996 (subsequent suit filed by the respondent) and as stated earlier the said application was dismissed vide impugned order. Section 10 of the Code of Civil Procedure reads as follows:-- "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."
6. Learned counsel for the applicant assailed the impugned order and inter alia contended that substantially the nature of relief claimed by the applicant and the respondent in the different suits is same. The parties are same and in order to avoid conflicting decisions in the two suits filed by the same parties and in two different Courts the learned trial Court ought to have granted the application filed by the applicant under section 10 of the C.P.C. He has relied upon the following cases:--
(1) Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 589,
(2) S.M. Akil Fikree v. Muhammad Qamaruzzaman PLD 1982 Kar. 745,
(3) Kassamali Alibhoy v. Sheikh Abdul Sattar PLD 1966 (W.P.) Kar. 13,
(4) C.L. Tendon, G.C. v. Prem Pal Singh Rawet and others AIR 1978 Delhi 221,
(5) Trikamdas Jethabhai and others v. Jivraj Kalianji and another AIR (29) Born. 314.
7. Mr. M. Asar Hussain, learned counsel for the respondent while supporting the impugned order has stated that the parties are different as K.D.A. and Sub-Registrar are not the parties in the suit filed by him. He has further, stated if one issue or some issues may be common the subsequent suit could not be stayed. He has further stated that he has claimed the relief of possession which has not been claimed by the applicant as such he is not entitled to the relief in terms of section 10, C.P.C. He has relied upon the following judgments:--
(1) Kota Sreereamulu v. Kota Sreeramulu AIR 1922 Mad. 304,
(2) Messrs M. Sharif Chiragh Din and others v. Pakistan through Secretary Defence, Islamabad 1988 SCMR 1674,
(3) S.M. Akil Fikree v. Muhammad Qamaruzzaman PLD 1982 Kar. 745,
(4) Kassamali Alibhoy v. Sheikh Abdul Sattar PLD 1966 (W.P.) Kar. 13,
(5) Muhammad Uounus v. Nargis Sultana PLD 1970 Lah. 41,
(6) Mst. Salama Abbasi and another v. Ahmed Suleman and others MLD 1992 746,
(7) Gopikisan and others v. Padamraj and others AIR 1916 Nag. 70,
(8) Paira Mal & Sons v. Raj Narain & Co. AIR 1919 Lah. 3(2), and
(9) Mahangu Prasad Sah and others v. Parvez Sah and others AIR 1975 Gauhati 40.
After hearing the parties in the open Court the following short order was passed:-- "Arguments concluded. For the reasons to be recorded separately application under section 10 read with section 151, C.P.C. filed by the applicant in the Court of IIIrd Senior Civil Judge, Karachi is granted. The impugned order is set aside. The proceedings in Civil Suit No,269 of 1994 are stayed while the proceedings in Suit No,40 of 1986 in this Court shall proceed subject to all just exceptions.
There will be no order as to costs."
These are the reasons for passing such order..
(a) The trend of the judgments cited by the parties invariably is that the provisions of section 10 are mandatory as they are couched in negative language. The property for which declaration has been sought by the rivals is same declaration emanates from the lease which is in the favour of the respondent while the applicant is in possession. The parties are same. The respondent has not made the K.D.A. and Sub-Registrar as party because he has the lease in his favour while the applicant has made K.D.A. and Sub-Registrar as party because he has sought declaration for cancellation of lease. The applicant has not prayed for possession as he is already in possession.
Substantial overall nature of relief sought by both the parties is same and the parties are same as such there is identification of entire dispute sub judice in two different suits, therefore, requirement of the conditions mentioned in the judgment relied upon by the learned counsel for the respondent in a case reported Muhammad Younas v. Nargis Sultana PLD 1970 Lah. 41 has been fully made.
(b) The Courts while deciding civil suit get their powers from section 9 of the Code of Civil Procedure to grant relief which is the function of the Court and is always granted in terms of prayer unless, of course, the Court come to the conclusion that the relief can be modified or may be denied. In the suits filed in different Courts the dispute is in relation to the ownership and the possession the Courts as such have the concurrent jurisdiction as such the requirement or the condition mentioned in the judgment reported as Paira Mal & Sons v. Raj Narain & Co. AIR 1919 Lah.
3(2) has been met.
(c) Another reason is that the Court where the subsequent suit has been filed should not proceed with the case so that conflicting judgments/decisions can be prevented. This is a condition mentioned in the judgment as Mahangu Prasad. Sah and another v. Pravaz Sah and others AIR 1975 Gauhati 40. Indeed that is so and this is one of the legal principles. In this case the suit has been filed by the applicant in the High Court and has sought the relief substantially the same which has been sought by the respondent in the subsequent suit. In order to avoid the conflict the Legislature has made it clear that the subsequent suit is to be stayed. There is wisdom also. If the suit filed by the applicant is dismissed and it is declared that the respondent is the owner of property the applicant would have no defence in the suit filed by the respondent subsequently. The burden of the respondent would also be lesser. For these reasons the suit filed subsequently should have been stayed.
(d) In order to decide the application under section 10, C.P.C. a Court has to look to the overall pleadings and the nature of relief which is sought by the parties. If the parties are same, there is identity of the claim in the suit and the relief claimed is substantially same or identical then the suit filed subsequently, ought to be stayed.
(e) I have quoted the prayer in both the suits in the earlier part of this judgment. Since there is identification of the disputed property, the nature of relief is substantially the same or identical. The dispute is essentially between the applicant and the respondent i,e, regarding the ownership of the property, I would, therefore, held that the applicant is entitled to the relief claimed by him in his application under section 10 of the Code of Civil Procedure.
(f) Mr. Muhammad Aser Hussain, learned counsel for the respondent has contended that K.D.A. and Sub-Registrar are not the parties made by him that does not make any difference because he has already got lease deed in his favour but not the possession. The applicant has possession but not the declaration of the ownership. In view of additional declaration regarding cancellation of documents K.D.A. and Sub-Registrar were made as a party but that would not alter the nature of dispute, the identity of the claim and substantial relief sought by the parties.
8. Consequently, this revision application is allowed in terms of short order quoted supra.