' RANA BHAGWAN DAS, J.---Through this Constitutional petition petitioners who are the plaintiffs in Suit No,152 of 1987 against Muhammad Hayat Khan predecessor-in-interest of respondents Nos.2 to 4 and official respondents have called into question vires of the judgment passed by learned Additional District Judge, Mirpur Mathelo in Civil Revision Application No,9 of 1997 setting aside an order passed by Senior Civil Judge, Mirpur Mathelo, in Second Class Suit No,25 of 1993 whereby the former had directed the stay of suit in terms of section 10 of the Code of Civil Procedure.
2. Facts in brief leading to this petition appears to be that petitioners Nos.1 and 2 filed First Class Suit No,152 of 1987 against Federation of Pakistan, Province of Sindh, Deputy Commissioner, Sukkur, Mukhtiarkar, Mirpur Mathelo and Muhammad Hayat Khan father of respondents Nos.2 to 4 for declaration and permanent injunction in relation to certain survey numbers situated in Deh Mirpur, Taluka Mirpur Mathelo. This suit was contested by respondents Nos.2 to 4 and has now been decreed, such judgment and decree being sub judice in an appeal before the District Judge, Ghotki. On their part respondents Nos.2 to 5 filed Suit No,25 of 1993 for possession, mense profits and injunction against the petitioners as well as respondent No,6. Petitioners moved an application in terms of section 10, C.P.C. For stay of the subsequent suit on the grounds that the parties to ,the suit and the subject-matter were the same as involved in the previously instituted suit filed by them. This prayer was resisted by the private respondents. By an order dated 7-4-1997, learned trial Court accepted the petitioner's version and stayed the proceedings in the subsequent suit. This order was impugned in Civil Revision No,9 of 1997 which was allowed by the order impugned in this petition.
3. At the hearing learned counsel for the petitioners submitted that the subject-matter i,e, survey numbers in both the above suits are common; that the parties to both the suits are identical; that both the Courts are competent to decide the issues involved in the suits, and that the impugned judgment suffers from a patent illegality. Conversely learned counsel for the private respondents urged that the requirement of law for stay of subsequently instituted suit is identity of the "matter in issue" directly and substantially in the subsequent suit and the subject-matter is totally irrelevant and alien to the stay of the suit within the purview of section 10, C.P.C. He contended that the matter in issue in both the suits is neither directly nor substantially the same inasmuch as in the suit filed by the petitioners they were seeking declaration with regard to an order passed by Deputy Commissioner and Assistant Custodian Evacuee Property in relation to the suit land and mutation in the record of rights whereas in the subsequent suit instituted by the respondents, they have prayed for delivery of possession, mesne profits for wrongful occupation of the land in suit. Besides, learned counsel pointed out that parties in both the suits were not common inasmuch as -official defendants in the previous suit are not parties to the subsequent suit. Moreover, 'defendant No,5 i,e, Muhammad son of Illahi Bux is not a party to the previously instituted suit.
4. Upon hearing learned counsel for the parties we are of the view that the impugned judgment does not suffer from any patent error of law nor does it run counter to the settled principles for stay of a subsequent suit. There is considerable force in the submissions of the learned counsel for the respondents when he states that it is the "matter in issue" which ought to be directly and substantially in issue in a previously instituted suit between the same parties and not the subject- matter as misinterpreted by learned counsel for the petitioners. It may be clarified that in the suit filed by the petitioners Nos.1 and 2 they have assailed and impugned the vires of an order passed by the official defendants i,e, Deputy Commissioner and Assistant Custodian Evacuee Property, Sukkur whereas such order has not been impugned in the subsequently instituted suit. Moreover, plain reading of the plaint in previous suit tends to show that in consequence of such order mutation in record of rights was effected in favour of Muhammad Hayat Khan who happens to be the father of respondents Nos.2 to 4 but same is not in issue in the subsequently instituted suit.
Furthermore, no relief has been claimed against the official defendants in the subsequently instituted suit filed by the respondents inasmuch as their prayer is confined to delivery of vacant possession, mense profits and permanent injunction. Learned Appellate Court is right in referring to five essential conditions for stay of suit in terms of section 10, C.P.C. And there can be no cavil with the proposition that if all such conditions are fulfilled it is incumbent upon the Court to stay the proceedings of subsequent suit. However, if all the conditions are not strictly fulfilled suit may not be stayed under this provision of law and in appropriate cases recourse may be had to inherent powers of the Court under section 151, C.P.C. For the reason alone the petition is liable to dismissal in limine and we are inclined to take such view.
5. One of us (Rana Bhagwandas, J.) has already expressed such view in a High Court appeal reported as Dr. Haider Ali Mithani v. Ishrat Swaleh PLD 1999 Kar.
81. In support of the view that expression "matter in issue" directly and substantially in issue is entirely different from the subject-matter of a suit, we are fortified in this view by a Division Bench case from Quetta jurisdiction in Abdullah Shah v. Abdul Ghaffar PLD 1988 Quetta 60.
6. Mr. Lachhmandas learned counsel for respondents Nos.2 to 5 raised a preliminary objection with regard to the maintainability of the petition arising out of an interlocutory order and referred to two decisions from the Lahore and Peshawar High Courts i,e, Wazir Begum v. Additional District Judge 1997 CLC 1654 and Khalif Dad v. Muhammad Gul 1997 CLC 1684, which apparently support the proposition but judgments so reported must be confined to the facts of the reported cases and do not appear to lay down a general rule of law. Learned counsel also referred to Muhammad Khan v.
Ghulam Fatima 1991 SCMR 970 in which Supreme Court declined leave to appeal from an order passed by the Lahore High Court in a base arising out of a prayer for amendment of pleadings. This judgment again does not lay down a hard and fast rule as convassed by the counsel. On the other hand Mr. Kalwar referred to Riaz Hussain v. Board of Revenue 1991 SCMR 2307 wherein petition arising out of an order passed by Board of Revenue under the West Pakistan Board of Revenue Act had been entertained by the High Court which came to be disturbed by the Hon'ble Supreme Court. In our view this judgment also does not lay down a rule of law for or against the proposition put forward on behalf of the respondents. Counsel also referred to a Single Bench decision reported as Habib Bank v. Ali Mohtaram Naqvi PLD 1987 Kar. 102 in support of the contention that application for stay of suit may not always be considered as interlocutory in nature. To our mind, reported case is not relevant in the circumstances of the case in hand.
For the foregoing reasons, we see no substance in this petition which is accordingly dismissed in limine.