1991 PLP 409 (CLC)

8. The plaintiffs consequently have prayed for a judgment and decree jointly and severally against the defendants Nos.l to 5 as follows:‑

"(A) For Declaration that the plaintiff No.l being the lawful tenant at the rate of Rs.400 per month of the entire first and second floor of the immovable property constructed on plot No.D‑9, Rizvia Cooperative Housing Society Ltd., Karachi is entitled to occupy and possess the entire first floor and second floor of the said property on reconstruction/re-erection of whatsoever nature by the Defendant No.l or any person/persons claiming through or under him as owner/landlord of the said property. ' (B) For Permanent Injunction restraining the Defendant No.1 his agents. subordinates, employees, attorneys and/or any one else claiming or acting through or under him from constructing on the aforesaid plot bearing No.D‑9, Rizvia Co‑operative Housing Society Ltd., Karachi and/or from mortgaging/selling/leasing out/parting with possession, or enjoyment of the said plot of land or any portion thereof or any construction thereon either on the first or second floor in favour of any other person whosoever to the exclusion of the plaintiff No.l. (C) For Mandatory Injunction directing the Defendant No.5, all its officers, employees and/or any one else acting on its behalf not to accord approval/sanction to the Defendant No.1 for constructing multistorey commercial building on Plot No.D‑9, Rizvia Cooperative Housing Society Ltd., Karachi till the defendant No.l agrees to accommodate and give/hand over physical possession to the plaintiff No.l of the entire first and second floor of the proposed building on plot of land bearing No.D 9, Rizvia Co‑operative Housing Society Ltd., Karachi and/or in case such sanction has already been accorded then to withdraw, suspend/cancel the same. (D) For Mandatory Injunction directing the Defendant No.1, his ‑agents, subordinates, employees, attorneys, successors and/or under him to hand over the physical possession of the entire first and second floor of the said proposed building on Plot No.D‑9, Rizvia Cooperative Housing Society Ltd., Karachi on reconstruction/erection to the plaintiff No. 1. (E) For Possession of the first floor and second floor of the proposed building on its reconstruction/erection on the plot of land bearing No.D 9, situated in Rizvia Co‑operative Housing Societv Ltd., Karachi. (F) For Recovery of total sum of Rs.1,98,00,000 from the Defendants Nos.l to 4 jointly and/or severally as compensation/damages/loss caused to the Plaintiffs by illegal acts of the Defendants Nos.l to 4 with interest thereon at the rate of 15% per annum from the date of this suit till its actual realisation from the said Defendants. (G) Cost of the suit; and (H) Any other/further reliefs which this Hon'ble Court deems fit and proper in the circumstances of the case."

9. The contention of Mr. Naimur Rehman, learned counsel for the defendant No.l is that the matter in the present suit and suits Nos.61/88 and 529/1988 is directly and substantially the same and, therefore, the proceedings in the present suit should be stayed until the decision of the Court in the other suits filed by the plaintiff No.l against the defendant No.l. The application has been resisted by Mr. Nizam Ahmed, learned counsel for the plaintiffs, according to whom, while in the earlier suits, the plaintiffs had sought a permanent injunction against their dispossession or restoration of possession under section 9 of the Specific Relief Act, the reliefs claimed in the present suit are distinct and unconnected with the said suits as apart from claiming relief against the defendants Nos.l, 3 and 4, who are alleged to have aided the former in his wrongful acts against the plaintiffs, a further relief has been sought against the defendant No.5, (Karachi Building Control Authority), by restraining it by a mandatory injunction from granting approval/sanction to the defendant No.l for construction of a multi‑storeyed building on the plot in question. Consequently, according to the learned counsel, apart from the plaintiff No.l and the defendant No.l the parties in three suits are not common.

10. In order to appreciate the respective contentions of the parties, it is pertinent to reproduce section 10 of the C.P. Code which provides as under:‑--

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 Federal Government and having like jurisdiction, or before the Supreme Court. Explanation.‑‑‑‑The pendency of a suit in a foreign Court does not preclude the Courts in Pakistan from trying a suit founded on the same cause of action." Section 10, C.P.C., shows that a complete identity of the matter in the previously instituted suit and the suit proceedings whereof are sought to be stayed, must first he established. The parties must also be the same or litigating under the same title. Recapitulating the facts, in the first suit filed by the plaintiff No.l (Suit No.61/1986), the plaintiffs had sought only a permanent injunction restraining the defendant No.l from interfering with his possession and enjoyment of the premises in question but thereafter on 23/24‑10‑1986, as has been alleged, the plaintiff No.l was forcibly ejected from the premises. He, therefore, filed the second suit (No.529/1988) for possession under section 9 of the Specific Relief Act. In this suit, the main issue between the parties was, whether the plaintiff No.l had been unlawfully and wrongfully ejected by the defendant No.l. In the present suit the plaintiffs, besides seeking a declaration from the Court that the plaintiff No.l is the lawful tenant of the defendant No.1 in respect of the suit premises, claims a further relief, against the defendants Nos.l and 5, the defendant No.l to be restrained by a permanent injunction from constructing a commercial plaza and the defendant No.5 from according approval/sanction for such construction. A mandatory injunction has also been sought against the defendant No.l restricting him from handing over the physical possession of the premises to the plaintiff No.l. Besides the said reliefs, the plaintiffs have also claimed compensation and damages from the defendants Nos.l to 4 amounting to Rs.1,98,00,

000. In Syed Alauddin Ahmed v. Md. Mustafa (P L‑ D 1971 Dacca 286), the Dacca High Court enumerated the following three conditions as essential for invoking section 10 of the Code: "(1) that the matter in issue in the second suit is directly and substantially in issue in the first suit; (2) that the parties in the second suit are the same; and (3) that the Court in which the first suit is instituted is competent to grant the relief claimed in the subsequent suit." The Lahore High Court in Muhammad Younas v. Nargis Sultana (P L D 1970 Lah. 41) held that one of the principles for staying the suit under section 10, C.P.C. is that there must be identity of the entire subject‑matter of the two suits. The mere fact that one issue in the two suits was common was held to be insufficient for bringing the subsequent suit within the scope of section 10 of the Civil Procedure Code. However, in Ram Narain v. Ram Swarup (A I R 1962 All. 108), it was held that complete identity of the subject‑matter is not necessary to attract the application of section 10, C.P.C. and if the matter directly and substantially in issue in a previously instituted suit is also directly and substantially in issue in the later suit then under section 10 the later suit shall be stayed. It was further held that any matter common to the two suits would not attract the provisions of section 10 but the matter must be of a substance so that its decision in one suit shall affect materially the decision of the other suit. 1n this case the matter directly and substantially in issue in both the suits was whether the truck was given to the opposite parties under a hire‑purchase agreement or there was a sale out and out and whether the applicant (the plaintiff in the earlier suit) had got back the truck by mutual agreement, and whether if the two issues were decided in favour of the applicant, the second suit would largely fail. The second suit was held liable to be stayed under section 10, though there were other questions arising in the later suit and though the decision in the earlier suit could not operate as res judicata in the later suit. In Durga Prasad v. Kanti Chandra Mukerji (A I R 1935 Call) it was held by the Calcutta High Court that if the first and the second suits are parallel, the second suit should be stayed. The following test was laid down by the Calcutta High Court to determine whether the two suits are parallel:‑-- "In endeavouring to arrive at its correct decision as to whether a subsequent suit is parallel to a previous suit, one must have to revert to the position of affairs at the time when each of the suits was, respectively, instituted and further to what would be the position of affairs when both the suits have been tried and finally determined. The rule criterion to apply is this: supposing the first suit was determined, would the position then be that when the second suit was instituted the matters rest in the second suit were res judicata by reason of the decision of the prior suit?"

12. Turning to the facts of the present case, the question primarily and essentially to be decided by the Court is as to the alleged wrongful dispossession of the plaintiffs Nos.l and 2 from the premises in question. This question is also substantially in issue in the second suit filed by the plaintiff No.l on 21‑4‑1987 (Suit No.529/1988). No doubt, in the present suit relief has also been sought against the defendants Nos.2 to 5 besides the defendant No.l but as pointed out earlier, while granting any of the reliefs sought against the said defendants in the present suit, the question mainly to be determined by the Court would be as to the alleged wrongful dispossession of the plaintiff No.l. The decision in respect of the other reliefs sought by the plaintiffs would also depend upon determination of this issue. The test to be applied by the Court is not whether all the issue involved in the two cases are common, but whether the matter in the former and the subsequent suit is substantially the same. Consequently, the Court has to look to the matter and not merely to the issues.

13. Another condition laid down by section 10 is, that the two suits should have been instituted between the same parties or between the parties under whom they or any of them claim litigating under the same title. The section, therefore, would not apply if the parties to the two suits are not common. Now, the plaintiff No.2 was not a party in the suits earlier filed by the plaintiff No.1 and so were the defendants Nos.2 to 5 in the present case. There appears to be hardly any controversy on the point so far as the plaintiff No.2 is concerned, because the plaintiffs N6s.1 and 2 are litigating for the same cause of action. So far as the defendants Nos.2 to 5 are concerned the mere fact that in the former suits the defendants Nos.2 to 5 were not parties would fail to make any substantial difference since the main relief claimed in the two suits, as pointed out earlier, is substantially the same. In such a case, the Court will have to determine whether the main relief in the case has been sought against the same defendant or defendants. The mere fact that ancillary relief has been claimed against the defendants who were not parties, to the former suit should not make any difference if the main parties in the two suits are otherwise common. I am, therefore, of the view that section 10, C.P.C. can be invoked in the present case.

14. In the result, I grant this application and stay further proceedings in the present suit until the decision of the suits Nos.529/1988 and 61/1988 which the plaintiff No.l has filed against the defendant No.l .C.M.A. No.2779/90 stand disposed of. H.B.T./H‑262/K Application accepted.