P L D 2008 Karachi 224 (PLP)

NADEEM AZHAR SIDDIQI, J.

By this application the defendant has prayed for stay of proceedings of this suit on the ground that the matter in issue in this suit is also directly and substantially in issue in a previously instituted Suit No.531 of 2004 between the same parties. Mr. Ali Ahmad Tariq, the learned counsel for the defendant submits that earlier suit filed by the defendant for accounts and other prayers is on the same cause of action, parties are the same, subject matter is the same and the issues are substantially same. He further submits that the provisions of section 10 are mandatory in nature and in presence of pendency of earlier suit the subsequent suit cannot be proceeded. He has relied upon reported case of Dr. Haider Ali Mithani v. Ishrat Swaleh (PLD 1999 Karachi 81). Mr. Naveed Ahmed Khan, the learned counsel for the plaintiff submits that both the suits have been filed on different cause of action and the issues are different. He submits that merely that the parties are the same is not sufficient to stay the proceedings. He further submits that the purpose of staying the suit is to avoid multiplicity of proceedings and conflict of opinion and the purpose can be achieved by consolidating the suits. He has relied upon the following reported cases:--

1. Muhammad Yaqoob v. Behram Khan (2006 SCMR 1262);

2. Muhammad Hafeez Khan v. Muhammad Azeem (2006 YLR 460). I have heard the learned counsel for the parties and perused the record of this case. The Suit No.531/2004 was filed by the defendant for accounts, perpetual injunction, appointment of receiver and recovery of Rs. Fourteen million as compensation for 'damages. This suit was filed against the defendant, who is plaintiff in earlier Suit No.531/2004 for recovery of Rs.64,82,

461. The parties in both the suits are same. The subject matter of both the suits is supply of raw material of poultry feed. The dispute is with regard to the supply of raw material and the quantum of payment. The object of the provision appears to prevent the Courts of concurrent jurisdiction for simultaneously adjudicating and proceeding with trial of two suits in which the matter in issue is directly and substantially the same between the parties in respect of same cause of action for the same subject matter and for the same relief. The other object of the section is to avoid conflict of opinion of two Courts. One test of applicability of section 10 is whether, on the final decision being reached in the previous suit, such decision would operate as res judicata in the subsequent suit. The subject matter of both the suits is same and the parties are also the same. The causes of action are different as well as the relief claimed in both the suits are also different. It appears that the issues in both the suits are also different. If the suit filed by the defendant bearing Suit No.531/2004 is decreed there will be' no need to proceed with the subsequent suit, but if for any reason, the suit of the defendant is dismissed the instant suit has to be proceeded on merits and no purpose will be served in staying the proceedings of this suit. In the reported case of Dr. Haider Ali Mithani v. Ishrat Swaleh (PLD 1999 Karachi 81) it was held that five essential ingredients must be fulfilled before directing the stay of subsequently instituted suit. The ingredients as mentioned in the judgment are as under:- (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. In the said judgment it was further held that if all conditions for exercise of jurisdiction under section 10, C.P.C. were not strictly fulfilled in order to achieve ends of justice, suit could be stayed under section 151, C.P.C. or trial of two suits must be consolidated. In the judgment reported as Muhammad Yaqoob v. Behram Khan (2006 SCMR 1262) it was held as under:-- "The purpose of consolidation is to avoid multiplicity of litigation to eliminate award of contradictory judgments and to prevent the abuse of the process of the Court. These purposes are merely illustrative and not exhaustive of the powers of the Court. There may be other variety of ground that in the interest of justice the Court maybe persuaded to consolidate the cases." In the reported case of Attock Oil Company v. Ghaith Rashad Pharaon (1996 CLC 1657) it has been held as under:-- "As far as question of applicability of this section is concerned, it can conveniently be determined by comparing the respective pleadings in different suits, and if the Court is able to form a tentative view that the decision in one suit would operate as res judicata or amount to non-suiting a party, resort can be had to provisions of section 10, C.P.C." From the perusal of the above judgments it appears that where the requirements of staying the proceedings are not available both the suits can be consolidated and disposed of by common judgment. In view of the above discussion, instead of staying the suit it will be appropriate to consolidate both the suits and to proceed the same together to avoid conflict of opinion. Suit No.531 of 2004 will be leading suit and evidence will be recorded in that suit. The learned counsel for the parties are directed to file consolidated issues before the next date. The application filed by the defendant is dismissed with no order as to cost. M.H./B-3/K Application dismissed.