P L D 1959 (W (PLP)

S. M. Zafar for Respondent. Date of hearing : 11th June 1959. The facts of the case are not denied. They in brief are that on the 29th of September 1954, Colony Woolen Mills Ltd. with their Head Office at Ismail Abad, Tahsil and District Multan, agreed to supply ten thousand blankets to firm Ismail‑Abdus Sattar & Brothers Karachi. Colony Woolen Mills sent two thousand blankets worth Rs. 50,000 through Habib Bank Limited to firm Ismail‑Abdus Sattar & Brothers on the 6th of October 1954. The latter took delivery of them, but subsequently when the former sent 1500 blankets on one occasion and 3,700 blankets on the other, they refused to take the delivery thereof. Both the parties asserted that the other had committed a breach of contract. Firm Ismail‑Abdus Sattar & Brothers instituted Suit No. 97 of 1955, on the original side of the High Court of West Pakistan Karachi Bench for the recovery of Rs. 35,465 being the refund of the deposit with interest and damages for breach of contract. They alleged that on the receipt of the first batch of 2000 blankets‑ it was found that they were not according to the agreed description and sample, and that for that reason they had refused to take the delivery of the other 1500 blankets sent by the Colony Mills Ltd. This suit was brought on the 19th of January 1955. 2. The Colony Woolen Mills Ltd. on the other hand instituted a suit for damages on account of the breach of contract on the 20th of September 1957, in the Court of the Senior Civil Judge, Multan. When the defendants were served, an application was made by them that the second suit instituted in Multan should be stayed under section 10 of the Civil Procedure Code. The learned Senior Civil Judge, Multan, by his order, dated the 12th of June 1958, has acceded to the request of firm Ismail‑Abdus Sattar & Brothers and has stayed the suit pending in his Court. Colony Woolen Mills have come up on revision to this Court against this order. 3. Under section 10 of the Civil Procedure Code, the Court is precluded from proceeding 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 the 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 the Provinces and the Capital of the Federation established or continued by the Central Government and having like jurisdiction. 4. It is conceded that all matters in issue in Multan Court are also directly and substantially in issue in the previously institu ted suit in the High Court of West Pakistan, Karachi Bench. The learned counsel for the petitioner however contends that if the suit in Multan Court is stayed, then it will perpetuate the breach of condition No. 23 of the Contract entered into between the parties under which no suit or legal proceedings arising out of, or in connection with the contract, could be instituted in any Court, save the Court of competent jurisdiction located within the Municipal limits of Multan. 5. The petitioner's counsel has invited my attention to certain authorities. The first one is Tilakram Chaudhuri v. Kodumal Jethan and Wadha (A I R 1928 Born. 175). Two suits were filed in this case by the opposite parties, one in Ludhiana on the 13th of May 1925, and the other in Bombay on the l9th of May 1925. In the agree ment which was the basis of two suits, the parties had agreed that no suit in regard to any matter arising out of the transaction would be instituted in any Court save the High Court of Judicature at Bombay, or the Court of Small Causes at Bombay. The Division Bench held that the suit in Bombay, though instituted subsequently, could not be stayed, because it would be inequitable to grant the relief which the defendant asked so as to enable him to break a clear term of his own contract with the plaintiff, and in the opinion of their Lordships, section 10, C. P. C., had nothing to do what soever with the case. Their Lordships further observed that section 10 did not prevent the Court from enforcing contractual rights of this nature between the parties. With all respect to the learned Judges who decided this case, I am unable to agree with their reasoning. Under section 10 of the Civil Procedure Code, regardless of the matter in issue, if it is directly and substantially in issue in a previously instituted suit between the same parties, then the subsequent suit in which the same matter is in issue shall have to be stayed. The question whether any party has broken the contract or any term of the contract is the one which requires determination by the Court where the suit is first instituted. It is open to that Court to say that the parties had contracted to sue at one place and, therefore, the suit instituted in any other place is not competent. 6. The second case cited at the bar is Firm Bichchha Ram Babu Ram v. Firm Baldeo Sahai Suraj Mal (A I R 1940 All. 241). In this case, the Division Bench, consisting of Bennet and Verma, JJ. held that where the parties expressly agree that any dispute arising between them with regard to certain transactions shall be decided by the Court at a particular place and one party institutes a suit in a Court not agreed upon and subsequently files his suit in respect of the same transaction but in the Court agreed upon, the latter Court is entitled as well as justified in issuing an injunction res training the first party from proceeding with the suit filed by him in flagrant violation of the agreement. In fact what happened in this case was that instituted a suit in Ambala on the basis of certain transactions entered into by the parties. Subsequently B instituted a suit on the same cause of action and for the same relief against A in Meerut. A made an application in Meerut Court that the suit should be stayed on account of his having instituted a suit previously in the Court at Ambala under section 10 of the Civil Procedure Code. On the other hand, the plaintiff made an application that an injunction should be issued to the defendant restraining him from proceeding with the suit filed by him in Ambala. The Court refused to stay the suit under section 10, C. P. C. arid granted the temporary injunction. The defendant in the Meerut case did not go up on revision to the High Court as against the rejection of his application for the stay of the suit, but objected to the order of the temporary injunction. Their Lordships, without going into the question whether the suit had been correctly stayed or not, held that the trial Court was com petent to grant the temporary injunction. This authority has, therefore, no bearing on the facts of the present case. 7. The third case cited is Ram Bahadur Thakur & Corirpany v. Devidayal (A I R 1954 Bom. 176). The proposition of law which is laid down in this case is that the Court notwithstanding the provisions of section 10; C. P. C. will be justified in refusing to stay the suit, even though the suit was subsequently instituted, if it is of the opinion that the first suit was vexatious and frivolous and was filed in violation of the contractual obligations to have the matter adjudicated upon in any other Court. This observation of their Lordships was based on the practice of that particular Court. In sub‑paragraph (2) of para No. 3 of the judgment their Lordships were pleased to observe as under :‑ "It has been the established practice in this Court for at least twenty‑five years known to the bar that injunctions have been issued by this Court restraining the defendants from proceeding with the suits which they had filed, even though the suits filed by them were previously instituted suits, sand even though the subsequently filed suit was liable to be stayed under section 10, C. P. C. This Court has proceeded on the basis that if a suit filed by a defendant is vexatious or frivolous or oppressive then this Court will prevent the defendant from going on with the suit although that suit may fall within the ambit of section 10". 8. It is thus clear that the proposition laid down was peculiar to the practice obtained in the Bombay Presidency. No such practice prevails in the former Punjab Province which has now merged into West Pakistan. In any case, even if this authority has any application to the facts of the present case, it is not alleged, much less proved, that the suit which was instituted by the defendant in Karachi Bench of the West Pakistan High Court was frivolous or vexatious, or brought simply to forestal the suit filed by the Colony Woollen Mills Ltd. 9. The fourth case cited at the Bar is Menoharla‑Jivvanlal Chopra v. Rao Raja Hiralalji‑S. Kalyanmalji Sanogi (A I R 1955 Madhya Bharat 145). The pro position laid down in this authority is the same as the one laid down in the authorities mentioned above. It was held that an agreement that where a suit concerning the dissolution of partner ship was brought in Court at Indore and a subsequent suit in a Court at Asansol, the subsequent suit instituted in Asansol could not be stayed under section 10, C. P. C. as the previously instituted suit was flagrantly in breach of the contract and was an abuse of the process of law. This authority was based on A I R 1928 Bom. 175, A I R 1940 All. 241 and A I R 1941 Cal. 670, but the learned Judges did not enter into any discussion. 10. The object in enacting section 10, C. P. C. was to prevent the. Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel suits in respect of the," same cause of action and the same subject‑matter of relief. If the argument of the learned counsel for the petitioner is accepted, supported as it is by some of the authorities cited above, then the whole object of section 10 would be defeated. The wording of section 10, C. P. C. makes it perfectly clear that the Court in which a suit is subsequently instituted, is precluded from the trial or such suit if it is proved to its satisfaction that the matter in issue was also directly and substantially in issue in a previously instituted suit between the same parties. There is no discretion vested in such Court to refuse to stay the proceedings on any ground much less on the ground that the suit instituted in the first Court was vexatious or frivolous or oppressive or was in breach of any contract entered into between the parties. It is open, to the plaintiff in the second suit to raise all these objections in the pre viously instituted suit and have them determined. The Court in which the suit has previously been instituted can very well dismiss the suit on the ground that it had no jurisdiction because of some sort of agreement arrived at between the parties to hear 'the suit or say that the suit should be heard by the second Court for the reason of the convenience of the parties or for any other valid reason. Assuming for the sake of argument that the position taken up by the learned counsel for the petitioner is correct and the Multan Court is not bound to stay the proceedings, then a race would start between the two parties to have a decision in their favour in the litigation so that it may operate as res judicata in the other suit. There is also a possibility of contradictory verdicts being given by two or more Courts in respect of the same relief which is against the policy of law because both the suits will be simultaneously heard, neither of the two Courts being bound to stay the suit. I am, therefore, of the opinion, that the order under revision is not only correct, but the Court in Multan had no other alternative but to pass the order in question. The revision petition is dismissed with costs. K. B. A Petition dismissed.