2019 PLP 92 (MLD)

MUHAMMAD ALAM, J.

This writ petition has been directed against order dated 16-12-2014 of the learned District Judge Gilgit, passed in Civil Revision No.11/2013.

2. The details of the circumstances that entailed to the petition in hand are that petitioner/plaintiff filed a suit (Civil Suit No.07/2004) on 17-02-2004. While arraying parties to the said suit, petitioner/plaintiff did not join respondents/defendants Nos.1 and 2 as parties to the suit. On 23-09-2014, petitioner/plaintiff filed another suit (Civil Suit No.119/2004). It is very important to note that both the said suits were for same cause of action and same subject matter. Very interestingly, learned trial court neither consolidated the said suits nor passed any orders of staying of proceedings on either of the two suits and instead continued with the trial of both the said two suits. A stage came when the trial court asked the petitioner/plaintiff for selection of either of the two suits for trial and for withdrawal of petitioner/plaintiff from contesting another. Then the trial court passed order dated 12-09-2007 accepting amendment petition of the petitioner/plaintiff regarding amendment in Civil Suit No.07/2014 while allowed petitioner/plaintiff to withdraw from contesting Civil Suit No.119/2004. Accordingly, the trial court passed order dated 26-11-2013, dismissing the suit (Civil Suit No.119/2004), as withdrawn. Then respondents/defendants Nos.1 and 2 filed a petition pleading that Civil Suit No.07/2004 is not maintainable as cause of action for the two suits were similar and withdrawal of petitioner/plaintiff from Civil Suit No.119/2004 operates as estopple. Learned trial court passed order dated 26-11-2013 in Civil Suit No.07/2004, whereby, application of petitioners, i.e., respondents/ defendants Nos.1 and 2, dated nill, filed under Order XXIII Rule 1(3), C.P.C., was dismissed. Feeling aggrieved from the same, respondent Nos.1 and 2 filed a Civil Revision No.11/13 in the District Court, who through his order dated 16-12-2014, accepted the same. Hence this petition.

3. We have heard learned counsel for parties and have gone through the file. The mismanagement of the learned trial court is evident from perusal of different order sheets. In our opinion, learned trial court has his own duties and is supposed to minutely see the situation arising in the circumstances of each case. In the case in hand, learned trial court received the second suit (Civil Suit No.119/2004) although the same was for similar subject matter and on the basis of similar cause of action as to that of previously instituted suit (Civil Suit No.07/2004). Moreover, a very interesting aspect of the case is that the order dated 12.09.2007, passed on amendment application, is intact so far. It is not disputed that the cause of action and subject matter of the two suits is similar. In our opinion, the impugned order and order dated 12-09-2007 are result of mistakes on the part of learned trial court. We are of the view that soon after institution of the second suit (Civil Suit No.119/2004), learned trial court could either consolidate the two suits or continue proceedings on one of the two suits while staying proceedings on another. Dismissal of the suit (Civil Suit No.119/2004) operates as estoppel but not in the circumstances of the case in hand as the same was passed as a result of mistakes on the part of the presiding officer of the court.

4. In these circumstances, we allow this petition, set aside impugned order of District Judge Gilgit and orders dated 26-11-2013 and dated 12-09-2007 of the trial court. Learned trial court is directed to continue with the trial proceedings on either of the two suits pending trial on another suit till result of the trial of one of the suit. Obviously, such result would be reflected on another suit also. Learned trial court is free to grant amendments, if found necessary for correct conclusion of the case. Learned trial court is also free to add any party to the case to either of the two suits, if found necessary. Petition allowed accordingly. This file be consigned to record. ZC/38/GB Petition allowed.