1999 PLP 1895 (CLC)

(2) S.M. Akil Fikree v. Muhammad Qamaruzzaman PLD 1982 Kar. 745, (3) Kassamali Alibhoy v. Sheikh Abdul Sattar PLD 1966 (W.P.) Kar. 13, (4). C.L. Tendon, G.C. v. Prem Pal Singh Rawet and others AIR 1978 Delhi 221, (5) Trikamdas Jethabhai and others v. Jivraj Kalianji and another AIR (29) Born. 314.

7. Mr. M. Astir 'Hussain, learned counsel for the respondent while supporting the impugned order has stated that the parties are different as K.D.A. and Sub‑Registrar are not the parties in the suit filed by him. He has further,' stated if one issue or some issues may be common the subsequent suit could not 1 be stayed. He has further stated that he has claimed the relief of possession which has not been claimed by the applicant as such he is not entitled to tile relief in terms of section 10, C.P.C. He has relied upon the following judgments:‑‑ (1) Kota Sreereamulu v. Kota Sreeramulu AIR 1922 Mad. 304, (2) Messrs M. Sharif Chiragh Din and others v. Pakistan through Secretary ' Defence, Islamabad 1988 SCMR 1674, (3) S.M. Akil Fikree v. Muhammad Qamaruzzaman PLD 1982 Kar. 745, (4) Kassamali Alibhoy v. Sheikh Abdul Sattar PLD 1966 (W.P.) Kar. 13, , ^ (5) Muhammad Uounus v. Nargis Sultana PLD 1970 Lah. 41, (6) Mst. Salama Abbasi and another v. Ahmed Suleman and others MLD 1992 746, (7) Gopikisan and others v. Padamraj and others AIR 1916 Nag. 70, (8) Paira Mal & Sons v. Raj Narain & Co. AIR 1919 Lah. 3(2), and (9) Maharigu Prasad Sah and others v. Parvez Sah and others AIR 1975 Gauhati 40. , After hearing the parties in the open Court the following short order was passed:‑‑ "Arguments concluded. For the reasons to be recorded separately application under section 10 read with section 151, C.P.C. filed by the applicant in the Court of HIM Senior Civil Judge, Karachi is granted. The impugned order is set aside. The proceedings in Civil Suit No.26.9 of 1994 are stayed while the proceedings in Suit No.40 of 1986 in this Court shall proceed subject to all just exceptions. There will be no order as to costs." These are the reasons for passing such order. (a) The trend of the judgments cited by the parties invariably is that the provisions of section 10 are mandatory as they are couched in negative language. The property for which declaration has been sought by the rivals is same declaration emanates from the lease which is in the favour of the respondent while the applicant is in possession. The parties are same. The respondent has not made the K.D.A. and Sub‑Registrar as party because he has the lease in his favour while the applicant has made K.D.A. and Sub‑Registrar as party because he has sought declaration for cancellation .of lease. The applicant has not prayed for possession as he is already in possession. Substantial overall nature of relief sought by both the parties is same and the parties are same as such there is identification of entire dispute sub judice in two different suits. therefore, requirement of the conditions mentioned in the judgment relied upon by the learned counsel for the respondent in a case reported Muhammad Yonnas v. Nargis Sultana PLD 1970 Lah. 41 has been fully made. (b) The Courts while deciding civil suit get their powers from section 9 of the Code of Civil Procedure to grant relief which is the function of the Court and is always granted in terms of prayer unless, of course, the Court come to the conclusion that the relief can be modified or may be denied. In the suits filed in different Courts the dispute is in relation to the ownership and the possession the Courts as such have the concurrent jurisdiction as such the requirement or the condition mentioned in the judgment reported as Paira Mal & Sons v. Raj Narain & Co. AIR 1919 Lah. 3(2) has been met. (c) Another reason is that the Court where the subsequent suit has been filed should not proceed with the case so that conflicting judgments/decisions can be prevented. This is a condition mentioned in the judgment as Mahangu Prasad Sah and another v. Pravaz Sah and others AIR 1975 Gauhati

40. Indeed that is so and this is one of the legal principles. In this case the suit has been filed by the applicant in the High Court and has sought the relief substantially the same which has been sought by the respondent in the subsequent suit. In order to avoid the conflict the Legislature has made it clear that the subsequent suit is to be stayed. There is another wisdom also. If the suit filed by the applicant is dismissed and it is declared that the respondent is the owner of property the applicant would have no defence in the suit filed by the respondent subsequently. The burden of the respondent would also be lesser. For these reasons the suit filed subsequently should have been stayed. (d) In order to decide the application under section 10, C.P.C. a Court has to look to the overall pleadings and the nature of relief which is sought by the parties. If the parties are same, there is identity of the claim in the suit and the relief claimed is substantially same or identical then the suit filed subsequently, ought to be stayed. (e) I have quoted the prayer in both the suits in the earlier part of this A judgment: Since there is identification of the disputed property, the nature of relief is substantially the same or identical. The dispute is essentially between the applicant and the respondent i.e. regarding the ownership of the property, I would, therefore, held that the applicant is entitled to the relief claimed by him in his application under section. 10I of the Code of Civil Procedure. (f) Mr. Muhammad Aser Hussain, learned counsel for the respondent has contended that K.D.A. and Sub‑Registrar are not the parties made by him that does not make any difference because he has already got lease deed in his favour but not the possession. The applicant has possession. but not the declaration of the ownership In view of additional declaration regarding cancellation of documents K.D.A. and Sub Registrar were made as a party but that would not alter the nature of dispute. the identity of the claim and substantial relief sought by the parties.

8. Consequently, this revision application is allowed 'in terms of short order quoted supra. H.B.T./M‑303/K Revision application allowed.