2023 PLP 685 (CLC)

IQBAL AHMED KASI, J.

The instant Constitutional Petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, carries the following prayer clause: "It is therefore, most respectfully prayed that the record from the court below may kindly be called for and after perusal of the same the impugned order dated 25th June, 2022, passed by the Additional District Judge-IX, Quetta (Respondent No. 8) be set aside / declared null and void and in consequence thereof the order dated 29th April, 2022, passed by Civil Judge-I, Quetta be restored in the interest of Justice, Equity and Fair Play."

2. Brief facts of the case are that the respondents Nos.1 to 3 / plaintiffs filed a suit for declaration, cancellation of mutations / transfer on forged and fake power of bases transfer of property, situated at Railway Housing Scheme Quetta, Plot No.C-1(A) measuring 6006 sq.ft. ("the property in dispute") and permanent injunction with the averments that the respondents Nos.1 to 3 / plaintiffs are legal heirs of Mir Salar Khan (mentioned in the suit as Safar Khan), who died on 16/10/2000, leaving behind number of properties in different cities of the Country including the property in dispute. It is further averred that since the whole family members of the respondents Nos. 1 to 3 / plaintiffs had shifted to Karachi, therefore, the predecessor-in-interest of the petitioners / defendants namely, Muhammad Alam, who is their parental uncle, was looking after the property in question, and also made a forged power of attorney dated 28.01.2002, on behalf of the respondents Nos. 1 to 3 / plaintiff. The said Muhammad Alam was died / martyred on 16.10.2000, but his legal heirs on the basis of said power of attorney, with concealments of facts and in a fraudulent manner, succeeded to got transfer the property in dispute on their names.

3. Meanwhile, the petitioners / defendants, in-spite of filing written statement, filed an application under Order VII, Rule 11, C.P.C. for rejection of the plaint, which was though rejected by the Civil Judge-I, Quetta ("the trial Court"), vide order dated 29th April, 2022, however, it was further observed that since Section 10 of C.P.C. bars proceedings with case in hand by this Court, resultantly, proceedings with case in hand is stayed till disposal of suit earlier filed before Hon'ble High Court of Sindh at Karachi.

4. The respondents / plaintiffs Nos.1 to 3, being aggrieved of the order of the trial Court, filed a Civil Revision Petition Under Section 115, C.P.C. before the Additional District Judge-IX, Quetta ("the revisional Court"), who vide order dated 25th June, 2022 ("the impugned order") allowed the petition, set aside the order dated 29th April, 2022, and remanded the case back to the trial Court with the direction to proceed the case in accordance with law, hence this petition.

5. Learned counsel for the petitioners / defendants Nos.1 to 4 contended that the trial Court has passed a well reasoned and speaking order, while dilating upon the Section 10 of the C.P.C. but the revisional Court has failed to appreciate this legal aspect of the case and set aside the order of the trial Court, which is otherwise illegal, unlawful and liable to be dismissed; that a suit with the same subject matter and between the same parties was filed earlier to the suit in hand, and the trial Court just to avoid conflicting observations and to protect the rights of either party, but the revisional Court ignored such legal aspect of the matter and set aside the order of the trial Court, which is legally not maintainable and liable to be set aside.

6. We have heard the learned counsel for the petitioners and have gone through the available record, which reveals that the respondents Nos.1 to 3 filed a suit for declaration, cancellation of mutation transfer on forged and fake power of attorney and permanent injunction against the petitioners and other respondents. The petitioners instead of filing written statement, filed an application under Order VII, Rule 11, C.P.C. for rejection of the suit on the ground that a suit is already pending before the High Court of Sindh at Karachi, regarding the same property. The perusal of the record reveals that the suit pending before the High Court of Sindh at Karachi is for administration, partition, possession and permanent injunction and though the trial Court rejected the application under Order VII, Rule 11, C.P.C., but surprisingly stayed the suit. It also appears from the record that the said suit is still pending adjudication in office objection on maintainability of the said suit. Moreover, it also appears from para No.9 of the suit that deceased Muhammad Alam son of Mir Shadi Khan was lastly residing at Karachi and also died there, therefore, the administration suit was filed before the High Court of Sindh at Karachi.

7. Furthermore, as the trial Court stayed the suit while taking backing of Section 10, C.P.C., therefore, it would be appropriate to reproduce the same: "

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." In order to apply provisions of Section 10, C.P.C., five conditions must be fulfilled, which reads 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 pending 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. 5) The parties must be litigating in both the suits under the same title.'

8. It is settled law that if all the conditions aforementioned are fulfilled, it is mandatory upon the Court trying the subsequently initiated suit to stay the proceedings in the suit, but perusal of record reveals that the suit filed in the High Court of Sindh at Karachi is administrative one and the same was filed under the Succession Act, 1925, therefore, under Section 371 of the said Act, the litigation can be filed where the deceased was ordinary resided at the time of his death, meaning thereby, the High Court of Sindh at Karachi also did not entertain the said suit, as regular civil suit.

9. Legally, administration suit in view of the Succession Act, 1925 includes the collection of assets of deceased, the payment of debts and distribution of residue to persons beneficially entitled under the will of the testator or on his intestacy. In view of such, it is cleared that the suit filed by the respondents before the High Court of Sindh at Karachi is an administration suit, filed under the provisions of Succession Act, 1925. The cause of action of that suit is of distributed, partition and equal apportionment of their respective legal shares between the legal heirs of late Muhammad Alam. The present suit filed by respondents Nos.1 to 3 before the Civil Judge-I, Quetta is a regular suit for immovable property, which has been alleged to have been transferred illegally through forged and fake power of attorney. The cause of action of the instant suit is quite different from the suit pending before the High Court of Sindh at Karachi. Perusal of the record further reveals that the application filed by the petitioner before the trial Court under Order VII, Rule 11, C.P.C. is not fulfilling the five conditions, as mentioned in para supra, nor fulfills the conditions for the reason that the instant suit is of different cause of action with different title and between different parties. More so, the question of applicability of Section 10, C.P.C. in view of the facts and circumstances of the case does not arise at all on the reason that the nature of both the matters i.e. administration suit pending before the High Court of Sindh at Karachi and present suit filed before civil jurisdiction of Quetta are quite different in nature and with different cause of action. In view of above, we find no reasoning to interfere in the order of the lower revisional Court, as such, the instant Constitutional Petition No. 1250 of 2022, is hereby dismissed in limine. SA/153/Bal. Petition dismissed.