2011 MLD 261 (PLP)

SALMAN HAMID, J.

On 24-3-2008, learned counsel for the plaintiff requested that before customary hearing could take place in the matter, examination be made on legal issues whereafter this affair was adjourned for today for earshot of legal issues. By consent C.M.A. No.7266 of 2006 was taken up for hearing, though not fixed for such purpose to decide its fate. Defendant seeks stay of this suit under section 10, C.P.C. on the position that beforehand instituted Suits bearing Nos.340 of 2006 and 341 of 2006 are also between the same parties with same prayers and in value of the same property which is the subject-matter of the present Suit. To bear out his argument, the erudite counsel for the defendant has relied upon the very tongue of section 10, C.P.C. by emphasizing that, "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" and that such "suit is pending in the same Court or any other Court in Pakistan, with jurisdiction to grant the relief claimed". It was argued by the learned counsel for the defendant that the prayers as restricted in the present suit are also essentially the same as are on hand in previously instituted Suits Nos.340 and 341 of 2006. It was also argued that if the present Suit go on with to ensue, there is a strong likelihood of incongruous settlement with regard to the same matter in issue herein which is also at question in the above two previously instituted suits. On the other dispense the learned counsel for the plaintiff without filing any counter-affidavit to the above relevance, argued that the present Suit has no nexus or connection with previously instituted Suits Nos.340 and 341 of 2006 though parties to the two suits and the present Suit may be the same. It was pointed out that as far as Suits Nos.340 and 341 of 2006 are concerned, the prayers therein are entirely and enormously distinctive and dissimilar to the prayers restricted in the present Suit inasmuch as that Suits Nos.340 and. 341 of 2006 only just relate to Plot No.81, 8th land, Phase VI, DHA, Karachi, measuring 600 square yards whereas present Suit is essentially, substantially and exclusively relate to Plot No.79, 8th land, Phase VI, DHA, Karachi, measuring 600 square yards and therefore has no connection with Plot No.81. It was further urged that prayers '13', 'C', `D' and in the present Suit are distinct and independent prayers and exclusively relate to Plot No.79 and has no nexus or connection with the prayers as contained in Suits Nos. 340 and 341 of 2006. It was lastly argued that under givenset of circumstances the application moved by the defendants is liable to be dismissed with cost. Heard arguments. From the perusal of the case file of the present Suit as well as case files of Suits Nos.340 and 341 of 2006 it would transpire that the parties to litigation agreed to swap the possession of the two plots viz., Plot No.79 and Plot No.81 amongst themselves who are real brothers. However, due to some misunderstanding and misgivings the arrangement could not be materialized with the consequence that Suits Nos.340 and 341 of 2006 were filed against present plaintiff Munir Ahmed who was defendant in the two previously instituted suits in which the subject-matter was Plot No.81 only. The prayers those were contained in the two suits fundamentally relate to specific performance, prohibitory injunction from not selling and transferring Plot No.81 and restraining the plaintiff herein from dispossessing the plaintiff and also a declaration that cancellation of irrevocable general power of attorney was unlawful and void ab initio and in the event of this court approaching to the wrapping up that the agreement of sale cannot be specifically performed, compensation be awarded with 15% profit/mark up/equalizer from the date of institution of the suits till realization. As against this, the current Suit is cramped only to Plot No.79 with essentially the prayers that the Plot be not estranged, transferred or sold by 'the defendant and registered conveyance deed in respect thereof be executed in favour of the plaintiff and that the plaintiff should not be expelled from the Plot and if for any reason this court comes to the conclusion that the Plot cannot be conveyed in favour of the plaintiff by the defendant, market worth thereof be structured. It is thus clear from the above prayers that the present Suit was filed in respect of Plot No.79 only and that an assortment of relieves have been claimed in respect thereof whereas previously instituted Suits Nos.340 and 341 of 2006, are in respect of Plot No.81 only. Such being the position, by no stretch of mind's eye it can be accomplished that the matter in issue in the present Suit is openly and largely is at issue in formerly instituted Suits Nos.340 and 341 of 2006. The reliefs prayed E for in the present Suit are also largely separate and dissimilar from the reliefs claimed in Suits Nos.340 and 341 of 2006. The contrast of present Suit with Suits Nos.340 and' 341 of 2006, particularly the prayers contained therein would show that present Suit is distinct and independent of Suits Nos.340 and 341 of 2006 and by no yardstick or elongated imagination hit by rations of section 10, C.P.C. It is a well advanced proposition of edict that in order to attract the provisions of section 10, C.P.C. the entire matters in issue in both the suits must be equal and it is not ample that if one or some issues are common, the provisions of section 10 would become germane. The test for putting the suits within the pale of section 10 is whether the closing decision in the previously instituted suit will operate as res judiciata in the subsequent suit. Such, in my opinion is not the case here as the dealings unfolded herein and in Suits Nos. 340 and 341 of 2006 would make it abundantly clear that pronouncement that would be given by this court in the present Suit would be independent and would not thump by the principles of res judiciata. Under this status I find the application (C.M.A No.7266 of 2006) meritless and allow it to go/dismiss it; however, with no order as to costs. H.B.T./M-195/K Application dismissed.