2008 PLP 398 (CLC)

C.M.A. No.6696 of 2004 NADEEM AZHAR SIDDIQI, J.

By this application, the defendant No.3 has prayed that the proceedings of the suit may be stayed, as the matter in issue is also directly and substantially in issue in previously instituted Suit No.1747 of 1999 between the same parties. Ahmad Pathan has filed counter-affidavit to the said application. He submits that causes of action of the present suit and the other suit are distinct and different and two suits have no nexus between them. The defendant No.3 has filed affidavit-in-rejoinder to the counter-affidavit filed by Ahmed Pathan. The learned counsel for the defendant No.3 submits that the provision of section 10 is mandatory in nature and since both the suits are between the same parties in respect of the same subject-matter and the issues involved are directly and substantially same the subsequent suit is liable to be stayed. He relied upon following reported cases:

(1) Habib Bank Ltd. v. Ali Mohtram Naqvi PLD 1987 Kar. 102 (2) Attack Oil Company v. Ghaith Rashad Pharaon and others 1996 CLC 1657. Suit No.1747 of 1999 was filed by the defendant No.3 in this matter against Shaukat Ali and others for specific performance of Agreement and permanent injunction, whereas the present suit was filed by Asad Pathan and others v. Shaukat Ali and others and--the plaintiff in Suit No.1747 of 1999 was impleaded as defendant No.3 in this suit which was filed for declaration, possession, mesne profit and perpetual injunction. The object of the provision appears to prevent the Courts of concurrent jurisdiction for simultaneously adjudicating and proceeding with trial of two suits in which the matter in issue is directly and substantially the same between the parties in respect of same cause of action for the same subject-matter and for the same relief. The other object of the section is to avoid conflict of opinion of two Courts. One test of applicability of section 10 is whether, on the final decision being reached in the previous suit, such decision would operate as resjudicata in the subsequent suit. The subject-matters of both the suits are same with the exception of few parties are also the same. The causes of action are different as well as the reliefs claimed in both the suits are also different. It appears that the issues in both the suits are different. If the suit filed by the defendant No.3 bearing Suit No.1747 of 1999 is decreed there will be no need to proceed with the subsequent suit, but if the suit of the defendant No.3 is dismissed the instant suit has to be proceeded on merits. Instead of staying the suit, it will be appropriate to consolidate both the suits and to proceed the same together to avoid conflict of opinion." The application is dismissed with no order as to cost. C.M.A. No.5345 of 2004 In view of the order passed on C.M.A. No.6696 of 2004 this application is allowed as prayed. This Suit is consolidated with, Suit No.1747 of 1999 which will be the leading suit and after framing of consolidated issues in both the suits the evidence will be recorded in Suit No.1747 of 1999. The application is allowed in the above terms. M.H./A-145/K Order accordingly.