P L D 1969 Karachi 193 (PLP)

Ma Kyaw v. Daw Kye U A I R 1935 Rang. 355 ref. (b) Civil Procedure Code (V of 1908), S. 151.-Consolidation of suits-Suit for possession under S. 9,. Specific Relief Act, 1877, cannot be consolidated with suit for declaration of title to property-Specific Relief Act (1 of 1877), S.

9. Vakil Ahmad Kidwai for Applicant. Monsoor Ahmad Khan for Respondent. This revision application arises in the following circumstances. One Khulque Muhammad Naqvi, hereinafter to be referred as Naqvi, is the owner of Plot No. 34 situated in Federal B. Area of Karachi. Adjacent to it is Plot No. 17 which is owned by Mst. Arifa Begum, to whom it was transferred by the former allottee Yousuf Raza. Afsar Khan is the husband of Mst. Arifa Begum. Naqvi filed a suit being Suit No. 449/67 claiming that Mst. Arifa Begum or her husband had dispossessed him of land measuring 8' x 60' on the point where the land of the two parties meet. This was a suit under section 9 of the Specific Relief Act and the relief claimed was that the plaintiff should be put back into possession from the portion from which he had been dispossessed. The defendants in this suit were Yousuf Raza, Afsar Khan and Arifa Begum. This claim was contested by Mst. Arifa Begum who claimed that she was in possession of what belonged to her and the portion claimed by Naqvi really belonged to her. She followed up this defence by a suit being Suit No. 249/68 which was instituted in March 1968 for a declara tion of title in respect of the disputed portion, which is on the boundary line of the two plots. Issues in both these suits have been framed but no evidence has yet been recorded in either of them and both of them are pending in the Court of the IX Civil Judge, 11 Class, Karachi. Two applications were made on behalf of Mst. Arifa Begum in Suit No. 449/67, one under section 10 of the C. P. C. read with section 151 and another only under section 151, C. P. C. In the first application the prayer was that the trial of Suit No. 449/67 be stayed until the decision of the title Suit No. 249/68. In the other application it was prayed that both the suits be consoli dated. The learned Civil Judge disposed of both these applications by one order passed on 2-10-68. In this he pointed out that the issues of both the suits would not be common and no appeal lay against a decree under section 9 of the Specific Relief Act whereas an appeal would be competent in the title suit filed by Mst. Arifa Begum. He added that if both the suits were consolidated they would have to be disposed of by one judgment. He also observed that the consolidation would not conduce to the speedy disposal of the suit under section

9. In this view of the matter he declined to consolidate the two suits. The reasons given by the learned Civil Judge with regard to the different nature of the two suits and the maintainability of appeal in one suit only are unexceptionable and he was clearly right in refusing, to consolidate the two suits. The matter, however, did note conclude there, because there was another prayer under section 151 and section 10 of the C. P. C. in which it was prayed that Suit No. 449/67 be stayed. Section 10 was obviously not applicable because this suit had been instituted prior to the Suit No. 249/68 and even if the issues in both the suits were sub stantially the same, it is the subsequent suit which requires to be stayed under section

10. The question, however, arose whether in the interest of justice and in the exercise of his inherent jurisdiction under section 151, C. P. C. the learned Civil Judge should have stayed Suit No. 449/67. I have heard Mr. Kidwai for the applicant and Mr. Mansoor Ahmad Khan for the opponent. Mr. Khan contended that having regard to the language of section 9 of the Specific Relief Act a party who has been dispossessed is entitled to maintain a suit under section 9, in which the only question to be inquired into is the factum of possession and dispossession and the summary determination of such a question should not be put off until the title suit is decided. He pointed out that even if a favourable judgment is obtained by the plaintiff in the suit under section 9, there will not be any bar to the decision of the title suit which has been filed by Mst. Arifa Begum. He referred me to certain cases, in which the nature of the proceedings under section 9 has been discussed. There is no quarrel with the proposition to which reference has been made in these cases. The question which has to be decided in this revision is whether in the circumstances of the case the justice of it did not demand that the title suit should be decided first. It may be observed that the dispute between the parties is in the nature of a boundary dispute. Each side is claiming that a certain portion falls into his land. It is also an admitted position that the construction of the building on the two plots was started after the date of the alleged dispossession. Mr. Naqvi claims that the disputed portion had been taken possession by him and he had laid the foundation of the compound wall on this portion and had also constructed a Chowkidar's hut. It is difficult to lay a hard and fast rule with regard to the stay of a suit under section 9 where the question of title is raised in another suit, which is pending at the same time. Where the filing of such a suit is found to be for the purpose of protracting proceedings and harassing the party which has been dispossessed, naturally the Court will no use its discretion under section 151 to stay the suit, for the simple reason that that power is to be exercised in the interest of justice. Having said that I am not prepared to accept it as a firm rule which cannot be deviated that in no case the inquiry on the point of possession in a suit under section 9 is to be suspended until the title suit is decided. It is true that a decision under section 9 is subject to a decision of a title suit which may eventually be filed. But considering that such a decision is subject to a decision of a title suit, the question at once arises whether in a case in which a title suit has been filed and is pending in the same Court and is at the same stage as the suit under section 9, whether the Court is not empowered in the interest of justice to stay the suit for possession. I have not been able to find any principle upon which such a rule can be laid down which, in certain cases may result in hardship. The dispute in this case is upon a small strip of land falling between the two plots. None of the houses had been constructed when the dispute arose. A title suit is now ripe for decision in the same manner as the suit under section

9. In the circumstances, I am of the opinion that notwithstanding the nature of the earlier suit, it would be in the interest of justice and to avoid multiplicity of legal proceedings that the title suit must be decided first. The only case that has been pointed out in this connection is an old decision of the Rangoon High Court in the case of Ma Kyaw v. Daw Kye U (A I R 1935 Rang. 355). In this case, it was held that when such a situation arises, the Court in the exercise of its inherent jurisdiction should stay the suit for recovery of possession. I have already said that no hard and fast rule can be laid down but having regard to all the circumstances of the case, I am of the opinion that title suit in this case should be decided first. It D follows that if the title suit of Mst. Arifa fails the suit under section 9 would have to be decreed. The revision is accordingly allowed, but having regard to the difficult nature of the point involved in the case I make no order as to costs. I direct that the learned Civil Judge will find time to dispose of this suit as early as possible. Revision allowed.