1996 PLP 1657 (CLC)

(4) Rahmat Ali v. M/s. Benares Silk Industries (PLD 1967 Dacca 113). (5) Haji Gul and others v. Mst. Aisha (PLD 19'73‑Kar. 653).

9. Learned counsel appearing for the defendants stated that while making submissions on application under Order 1, rule 10, C.P.C, the learned counsel for the plaintiff made a statement in the Court (of Civil Judge) that he was willing to argue the matter under section 10, C.P.C. They pointed out that‑in paragraph 3 of the revision petition,, the petitioner has admitted that detailed arguments were heard by the Trial Court and that belied the assertion regarding non‑giving of adequate opportunity of being iheard. It was submitted that the judgment of the High Court of England and Wales had lost its muscle due to orders of learned Senior Civil Judge, Rawalpindi and as such the Trial Court was justified in passing the impugned order which in the facts and circumstances of the case was a proper order. It was also contended that the. petitioner was invoking revisional jurisdiction of this Court. which could not come to his rescue unless the impugned order. failed to pass the acid=test prescribed by case of S. Zafar Ahmad v. Abdul Khaliq (PLD 1964 (W.P.) Karachi 149). After referring to various plaints submitted in‑ different suits,' the learned counsel for respondents supported the impugned order as being based on correct application of law on the subject. Reliance was placed on the cases of Trikamdas Jethabhai and others v. Jivraj Kalianji and another (AIR (29) Bombay 314), Syed Alauddin Ahmed v. Md. Mustafa (PLD 1971 Dacca 286), Jannana De Malucho Textile Mills Ltd., Kohat v. Waqar Ahmed Chaudhry (PLD 1972 SC 34), Faqir Muhammad and 5 others v. Sh. Nasim Ahmad (PLD 1979 Lahore 356), M/s. Muhammad Sharif Chiragh Din v. The State (1981 CLC 343), S.M. Akil Fikree v. Muhammad Qamaruz Zaman (PLD 1'982 Karachi 745) and Mst. Nawab Bibi and another v. Chairman, Allotment Committee.and others (PLD 1987 SC 145).

10. A general view of the scheme provided for determination of rights by the C.P.C. would reveal that it calls upon a litigant while asserting his, rights to place all his cards before the Court and bring all his adversaries in the arena in one action to avoid multiplicity and multifariousness of proceedings. A deviation from this principle may be visited with various penalties provided for the purpose in the Code. A less penal provision is contained in section 10, C.P.C. which reads as: "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. " . . An exigence of the provision is not proposed since the scope and objects of this provision have been well‑thrashed out during the last hundred years or so; and these can be summarized thus: Where two or more suits are pending in the same Court or different Courts having concurrent jurisdiction, regarding the same or substantially the same matters in issue between same or substantially the same A parties on either side claiming same or similar reliefs, the Court before whom the subsequent action is pending, may at any stage of the proceedings, either of its own motion or on an application made to it in this behalf, stay the proceedings in the second suit. An identity of subject‑matters, issues, parties; reliefs claimed is .not the sine qua non for exercise of power under this section. Though some precedents point to this direction yet preponderance of authority in the sub‑continent favours the position summarized above. As far as question ‑9f applicability of this section is concerned, it can. conveniently be determined by comparing the respective pleadings indifferent suits, and if the Court is able to form a tentative view that the decision in one suit would operate as res judicata "' or amount to non‑suiting a party, resort can be had to provisions of section 10, C.P.C. It may not be out of place to point out here that a Court has, also inherent power to stay a suit independently of this section, even if the case is not covered by section 10, C.P.C. Another corollary of the proposition summarized above is that despite the stay of a suit, the Court continues to exercise powers regarding interlocutory matters such as interim injunction or the like. The following case‑law besides the precedents noted above may be referred to for the above interpretation of section 10, C.P.C.: AIR 1917 Pat. 196; AIR 1919 Lah. 294; AIR 1920 All. 70; AIR 1922 Bonn. 274; AIR 1925 Pat. 201; AIR 1927 Mad. 1132; AIR 1928 Lah. 751; AIR 1931 PC 263; AIR 1935 Cal: 1; and AIR 1942 13om. 314.'

11. Now, coming to the order impugned in the present petition. Learned Cavil Judge, after noting the respective stands of the parties as contained in the. pleadings and highlighted at the tsar, went on to determine the import of the foreign judgment, on the strength of which the suit was filed. The learned Judge in paragraph No.7 of the order says "A person relying on a foreign judgment has only three options: (1) He can seek to execute and enforce the decree or foreign judgment;' . (2) He can . file a civil suit making that decree/judgment as a cause of action; (3) He can file a civil suit on the original. cause of action. Till that decree/judgment is recognized and enforced, it is a piece of paper. It cannot escape the rigours of section 13, C.P.C." In paragraph 8 of the order, the learned Civil Judge has taken stock of the situation created by filing of an earlier civil suit by Attock Oil Company and S. Dilawar Abbas in which David John Waters is arrayed as one of the defendants. The learned Judge found that the learned Senior Civil Judge, Rawalpindi had suspended the older of the English High Court in that civil suit, had allowed Directors of Attock Oil Company etc. to continue functioning and that order still held the field. The foreign judgment/decree was found as yet to be recognized and enforced. The learned Judge also observed that action in United Kingdom was initiated by the International Credit and Investment Company (Overseas) Limited (I.C.I.C.) and as such the suit filed by Attock Oil Company through David Waters was liable to be thrown out. The learned Judge stopped short of doing that and had he gone a step further, Mr. David John Waters would have found himself standing on. the pavement which incidentally was not far from the Court. .

12. A perusal of the order impugned, shows that the learned Civil Judge was neither ignorant of the law nor was oblivious of the factual position., He took into account pendency ‑ of various civil suits, found that the foreign judgment/decree was not yet enforceable and was otherwise suspended by another Court of competent/concurrent jurisdiction and then in order to avoid conflicting adjudications ordered stay of proceedings in the civil suit. Learned counsel appearing for the plaintiff‑petitioner has not pointed out any flaw in the impugned order on the legal or factual plane. His stress has been on the procedural impropriety by. urging that he was not put on sufficient notice as to proposed application of section 10, C.P.C. to the matter in issue since the matter being heard was application' under Order I, rule 10, C.P.C. Learned counsel also submitted that he was not given adequate opportunity of hearing in the matter either. Learned counsel for the defendants had disputed the version of the other side and stated that full‑dress hearing was given to the case, that the learned counsel for the plaintiff expressed his readiness to argue the question of stay of proceedings and in fact did argue the case according to his wishes. The record reveals that the Court had taken up application for grant of interim injunction and application under Order I, rule 10, .C.P.C., together for .hearing on 3‑4‑1994 and then the matter was adjourned to 10‑5‑1994 when the parties addressed the Court for two days on the‑ issue. Learned counsel for the petitioner/plaintiff had complained about "insufficiency of notice‑ and "inadequacy of opportunity" to put his case across and not that he was not put on" "notice" or was not given "opportunity of hearing". In other words he has admitted that he was on notice and was given opportunity of hearing. Presumption would be that the plaintiff was given "sufficient" notice and also "adequate" opportunity of arguing the matter. In the absence of any material, mere assertion by the petitioner would not warrant any conclusion to the contrary. The learned Civil Judge did not exercise jurisdiction in violation of~ any law or rule of procedure.

13. The other contention was that section 10, C.P.C. was ‑not attracted to the facts of the present case, as the matters in issue in the suits pending in Rawalpindi jurisdiction and the suit, in which this order was passed, were not identical. The respondents‑defendants have argued‑that indentity of matters in two suits is not required and if the issues involved are substantially the same provision of section 10, C.P.C. can be pressed into service. Admitted position is that two suits were filed at Islamabad through David .Waters; one on 10‑11‑1993 and the second on 11‑12‑1993. At least five different suits were filed on different causes of action at Rawalpindi. The suit, out of which present petition arises, was filed on the strength of orders dated 28‑10‑1992 of Justice Earman of the Chancery Division of the High Court of Justice of England and Wales. Order dated 28‑10‑1992 was challenged in civil suit filed on 7‑11‑1992 before Senior Civil Judge, Rawalpindi, who suspended the same: David Waters is defendant No.8 in the said suit. Cause of action sought to be enforced at Islamabad, is the one which is sought to be annulled at Rawalpindi. Heart of the matter is that there are different sets of litigants' each vying to have its pound of flesh from M/s. Attock Oil Company which owns Pakistan Oil Fields Limited and Attock Refinery Limited and numerous other subsidiaries of these concerns. In essence the subject‑matter or matter‑in‑issue or the real object in both the suits (one which has been adjourned sine die and the other which prompted the adjournment is substantially the same i.e. taking over Attock Oil Company; and exercise of jurisdiction by the learned Civil Judge though suo motu was perfectly . justified. The view of the learned Judge about possibility of conflicting judgments in two jurisdictions was realistic. The learned Judge did not exceed jurisdiction vesting in him calling for interference in the revisional jurisdiction of this Court.

14. Learned counsel for the petitioner lastly submitted that the Trial Court was bound to pass an order on application under Order XXXIX, rules 1 and 2, C.P.C., despite the sine die adjournment of the main suit. All the three learned counsel appearing for the respondents‑defendants did not urge anything to dispel the assertion of the petitioner. There appears to be nothing in law or authority to hold that a Trial Court cannot deal with interlocutory matters after a suit is stayed under section 10, C.P.C. AIR 1922 Bom. 274, AIR 1928 Lah. 751, 15 AIR 1969 All. ' 479 and AIR Mysore 63 are some of the precedents which support the proposition that making of interlocutory orders is not barred in a case where proceedings in main suit have been stayed. The learned Civil Judge ought to have dealt with application submitted under section 151, Order XXXIX, rules 1 and 2, C.P.C. seeking interim injunction.

15. The order dated 20‑7‑1994 of learned Civil Judge having been passed in proper exercise of jurisdiction is thus upheld and revision petition to that extent stands dismissed. But since the learned Civil Judge failed to adjudicate on the application for grant of interim injunction, he is directed to decide/dispose of the said application after issuing notices to the parties preferably by 30th of November, 1994. A.A./A‑36/L Order accordingly.