2020 PLP 1142 (CLC)

ROZI KHAN BARRECH, J.

Through the writ petition the petitioner has assailed the order dated 16.04.2018 (hereinafter "the Order") passed by learned Civil Judge-VII, Quetta, (hereinafter "the trial Court") and order dated 24.05.2019 (hereinafter "the impugned Order") passed by learned Additional District Judge-VI, Quetta, (hereinafter "the appellate Court") whereby the application under Section 10, C.P.C. and revision filed by the petitioner have been dismissed.

2. The brief facts are that the respondents Nos.1, 2 and 3 (plaintiffs) filed first amended suit for declaration and permanent injunction before the learned Civil Judge-VII, Quetta, whereby on service of notices, the predecessor-in-interest of the petitioners (Ghulam Haider) along with respondents Nos.4 and 5/defendants Nos.1 to 3 filed application under section 10, C.P.C. to seek stay of instant suit with averments that prior to filing of instant suit, the predecessor-in-interest of petitioners filed suit for declaration and permanent injunction to restrain the defendants from erecting wall over his property bearing Khasra No.788/786/760/167 measuring 7 Rods 21-9/21 Poles situated in Mahal Karkhasa, Mouza Kirani, Tappa Shadinzai, Tehsil City, District Quetta, so much so one of plaintiff of instant suit i.e. Aneel Masih arrayed as defendant No.2 by predecessor-in-interest of the petitioners. Subsequently, the respondents Nos.1, 2 and 3 filed the instant suit with regard to same property and over same cause of action merely to counter the previously filed suit and report of local commission which bring the instant suit within mischief of section 10, C.P.C.

3. The petitioners filed an application under section 10, C.P.C. before the learned Civil Judge-VII, Quetta, and the same was dismissed on 16.04.2018. Being aggrieved from the said order, the petitioners assailed the same before the learned Additional District Judge-VI, Quetta, through filing civil revision petition and the same vas dismissed on 24.05.2019. Hence this petition.

4. We have heard arguments and gone through the record.

5. The suit filed by respondents Nos.1, 2 and 3 (plaintiffs) for declaration and permanent injunction with the prayer that the respondents (defendants) be restrained from raising construction of occupying land of graveyard of Christian Community appearing on Khasra Nos.171 and 173 situated at Mahal Quetta, Mouza Kirani, Tappa Shadinzai, Tehsil Quetta, District Quetta. On the other hand, the suit filed by the petitioners and others against the respondents (defendants Nos.1 and 2) for declaration and permanent injunction with the prayer that the respondents Nos.1 to 4 may kindly be restrained through respondent No.5 from making any sort of interference in the peaceful possession of plaintiff over the property bearing Khasra Nos.788/786/760/167 measuring 7 Rods 21-9/21 Poles situated in Mahal Karkhasa, Mouza Kirani, Tappa Shadinzai, Tehsil City, District Quetta.

7. The most of the parties in both the suits are same, however, khasra numbers given by both the parties in their suits are different, the matter in issue in both the suits are not the same. The cause of action is different as well as the relief claimed in both the suits are also different. Section 10, C.P.C. provides that the matter in issue should be directly and substantially in issue in both the suits. It is also necessary that the subject matter of all the suits should be the same and if the subject matter is different, the provisions of section 10, C.P.C. would not attract.

8. In order to appreciate the legal point involved, the provision of section 10, C.P.C. is reproduced below:- "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 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." It is clear from the above provision that the following five conditions must be fulfilled:-- (a) the matter in issue in both the suits must be directly and substantially the same, (b) the previously instituted suit must be pending in a Court of competent jurisdiction, (c) the Court before which the previous suit is pending must be competent to grant the relief in the subsequent suit, (d) both the suits must be between the same parties or their representatives, and the parties must be litigating in both the suits under the same title. In the case in hand the condition mentioned in (a) is not fulfilled as the subject-matter is not the same.

9. The cause of action is different as well as the relief claimed in both the suits are also different, therefore, the provisions of section 10, C.P.C. are not applicable. The result of our above discussion is that we find no merit in this Petition which is hereby dismissed in limine. SA/152/Bal. Petition dismissed.