--Section 10 of "CPC" is structured on principle of res sub-judice--Primary objection of Section 10 "CPC" is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same matters in issue.

 PLJ 2022 Lahore 475

Civil Procedure Code, 1908 (V of 1908)--

----S. 10--Specific Relief Act, (I of 1877), S. 8--Suit for possession and recovery of mense profit--Filing of application for stay of proceedings-Pendency of CPLA regarding suit property in Apex Court--Dismissed--Suit instituted by petitioner was prior to respondents suit--Scope of--Challenge to--Principle of res sub-judice--Suit instituted by Petitioner No. 1 was prior in time and it is relatable to "suit property" wherein respondent is also a party--Petitioners, while invoking provisions of Section 10. ibid, though moved an application before Civil Judge seeking stay of proceedings but their application was declined--From perusal of record it clearly evinces that previous suit is not only interse same parties but subject matter was also same--Suit instituted by respondent was not proceedable in view of pendency of suit filed by Petitioner No--1 as same was not only relatable to "suit property" but cause canvassed therein was having direct nexus and bearing to cause agitated in present suit--Both Courts below have misconstrued impact of Section 10 "CPC" while rejecting application of petitioner and allowing suit to proceed further--Revision petition allowed.

                                                              [Pp. 478 & 479] A, C, E, F & G

Civil Procedure Code, 1908 (V of 1908)--

----S. 10--Primary objection--Section 10 of "CPC" places an embargo upon Court to proceed with trial of a suit-in which matter in issue is also directly and substantially in issue in a previously instituted suit between same parties, or between parties under whom they or any of them claim litigating under same title where such suit is pending in same or any other Court in Pakistan having jurisdiction to grant relief claimed, or in any Court beyond limits of Pakistan established or continued by Central Government and having like jurisdiction, or before Supreme Court--Section 10 of "CPC" is structured on principle of res sub-judice--Primary objection of Section 10 "CPC" is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same matters in issue.

                                                                          [Pp. 478 & 479] B & D

Mr. Sana Ullah Zahid, Advocate for Petitioners.

Raja Zafar Iqbal, Advocate for Respondent.

Date of Hearing: 24.11.2021.

 PLJ 2022 Lahore 475
[Rawalpindi Bench Rawalpindi]
Present: Mirza Viqas Rauf, J.
BABAR NAWAZ and 3 others --Petitioners
versus
MUHAMMAD RIAZ--Respondent
C.R. No. 4-D of 2021, heard on 24.11.2021.

Judgment.

This petition under Section 115 of the Code of Civil Procedure (V of 1908) arises out of a judgment and decree dated 2nd November, 2020, whereby the learned Additional District Judge, Jhelum, proceeded to dismiss the appeal preferred by the petitioners as well as cross-objections filed by the respondent against the judgment and decree dated 24th October, 2019 passed by the learned Civil Judge Class-I, Jhelum.

2. Facts in precision necessary for adjudication of instant petition are that the respondent instituted a suit for possession, injunction and recovery of mesne profit averring therein that he purchased house No. C-233, situated in Bilal Town, Jhelum (hereinafter referred as "suit property") from Muhammad Hussain Shah s/o Barkat Ali Shah in the year 1993. As per averments contained in the plaint, allotment deed No. 269 dated 4th August, 1993 was also issued in favour of respondent by the department of Housing & Physical Planning Division, Jhelum. It is asserted that the respondent alongwith his family is settled in Germany since 1976 and his parents were living in the "suit property". It is averred that Petitioner No. 1 was since having no house, so he was allowed to reside in the suit house with his family by the respondent. In the year 2003, father of the respondent died whereas his mother departed in the year 2009. The respondent then requested the petitioners to vacate the "suit property" but they refused to do so. Suit was resisted by the petitioners by submitting written statement wherein they controverted the assertions contained in the plaint. They also raised some preliminary objections with regard to maintainability of the suit. A specific preliminary objection was also raised on the ground that Petitioner No. 1 has already preferred a suit, which was though dismissed but proceedings are pending before the High Court. From the divergent pleadings of the parties, multiple issues were framed and suit was finally decreed partly vide judgment dated 24th October, 2019. The petitioners, feeling aggrieved, preferred an appeal before the learned Additional District Judge-whereas the respondent also filed cross-objections in terms of Order XLI Rule 22 "CPC". The appeal as well as cross-objections were dismissed through impugned judgment and decree.

3. Learned counsel for the petitioners submitted that though it is the claim of the respondent that he is the owner of the "suit property" and he has handed over the same to Petitioner No. 1 for his temporary residence but this fact was specifically controverted by the petitioners with the assertion that the respondent, in the first instance, executed a special power of attorney in favour of Petitioner No. 1 and in furtherance thereof, he sold the "suit property" to him through an oral transaction while receiving the earnest money. Learned counsel contended that the Petitioner No. 1 has already preferred a suit for declaration, specific performance, permanent and mandatory injunction to that effect, which was dismissed vide judgment and decree dated 1st March, 2014 and now the matter is subjudice before the Hon'ble Supreme Court of Pakistan. Learned counsel maintained that during the pendency of suit, an application under Section 10 "CPC" was moved by the petitioners, which was dismissed by the learned Civil Judge vide order dated 15th July, 2019. It is contended that suit was finally partly decreed vide judgment dated 24th October, 2019 and while preferring the appeal, the petitioners though have set forth a ground of objection in the memorandum of appeal but it was not attended at all by the learned Appellate Court. Learned counsel emphasized that suit should not have been proceeded and the impugned judgments and decrees are nullity in the eye of law.

4. Conversely, learned counsel for the respondent submitted that there are concurrent findings of facts, which are based on proper appraisal of evidence. He added that suit was rightly proceed by the Courts below and the impugned judgments and decrees are unexceptionable.

5. Heard. Record perused.

6. Suit at hand was instituted by the respondent on the ground that he is owner of the "suit property", which was temporarily handed over to the Petitioner No. 1 for his residence. On the contrary, it is stance of the petitioners that the respondent had sold out the "suit property" to Petitioner No. 1 through an oral transaction and to this effect, he received the sale consideration. It is apparent from the record that Petitioner No. 1, to this effect, had already instituted a suit for declaration, specific performance, permanent and mandatory injunction, which was dismissed vide judgment and decree dated 1st March, 2014. It evinces from the record that proceedings in the said suit are now pending before the Hon'ble Apex Court in CPLA No. 3043 of 2018.

7. There is no cavil that suit instituted by Petitioner No. 1 was prior in time and it is relatable to the "suit property" wherein the respondent is also a party. Section 10 of "CPC" places an embargo upon the Court to proceed with the trial of a 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. For ready reference and convenience, Section 10 of "CPC is reproduced below:

10. Stay of suit.--No Court shall proceed with the trial of a 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.

Section 10 of "CPC" was inserted in the Code for avoiding multiplicity of proceedings on same cause and obviate conflict of decisions and unnecessary labor on adjudication of a common suit. From the bare perusal of Section 10 of "CPC" reproduced hereinabove, it becomes manifestly clear that for invoking the provision, the following are the necessary limbs:

i.        The matter in issue in both suits must be directly and substantially the same in both the proceedings.

ii.       The previously instituted suit is pending in a Court of competent jurisdiction.

iii.      The Court before whom the previous suit is pending must be competent to grant relief in the subsequent suit.

iv.      Both the suits, i.e. the previous and the subsequent suits must be between the same parties or their representatives; and

v.       The parties must be litigating under the same title.

8. The petitioners, while invoking the provisions of Section 10. ibid, though moved an application before the learned Civil Judge seeking stay of proceedings but their application was declined vide order dated 15th July, 2019. The petitioners though have not challenged the said order through separate proceedings but in terms of Section 105 of "CPC", they were entitled to set forth a ground .of objection in the memorandum of appeal as the said order was affecting the decision of the case. Suit was later on decreed partly vide judgment dated 24th October, 2019 against which the petitioners preferred an appeal wherein while invoking Section 105 of "CPC", they have categorically set forth a ground of objection as Ground No. 8 in the memorandum of appeal with regard to the said order.

9. It appears that the learned Additional District Judge has though adverted to the said aspect of the matter but he discarded the same on the ground that even if the CPLA filed by Petitioner No. 1 is decided in his favour, even then Section 144 of "CPC" will cater such a situation, suffice to observe that while observing so, the learned Additional District Judge was oblivious of the mandate of Section 144 "CPC", which clearly applies to the proceedings ensuing from the suit at hand and not to any other proceedings.

10. Section 10 of "CPC" is structured on the principle of res sub-judice. The primary objection of Section 10 "CPC" is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same matters in issue. While incorporating the above principle in the Code, it was apparently the intent of legislature to confine the parties to one suit with regard to the same cause in order to obviate the possibility of conflicting judgment. From the perusal of record it clearly evinces that previous suit is not only interse same parties but the subject matter was also the same. Reference in this respect can be made to Messrs H & B General Trading Company through Director v. Messrs International Marketing Company through Proprietor and 2 others (2009 CLC 354), Abdur Rashid and 6 others v. Muhammad Hanif and 2 others (1985 CLC 1887), Habib Bank Ltd. v. Ali Mohtaram Naqvi (PLD 1987 Karachi 102), Dr. Haider Ali Mithani and another v. Ishrat Swaleh and others (PLD 1999 Karachi 81) and Muhammad Chotey Khan v. Muhammad Muneer Khan (1999 CLC 1895).

11. After having examined the scope of Section 10 "CPC", there remains no cavil that suit instituted by the respondent was not proceedable in view of pendency of suit filed by Petitioner No. 1 as the same was not only relatable to the "suit property" but cause canvassed therein was having direct nexus and bearing to the cause agitated in the present suit.

12. The nutshell of above discussion is that both the Courts below have misconstrued the impact of Section 10 "CPC" while

rejecting the application of the petitioner and allowing the suit to proceed further. Resultantly this petition is allowed. As a sequel whereof, application moved by the petitioners under Section 10 "CPC" shall stand accepted declaring the order dated 15th July, 2019 as well as judgments and decrees nullity in the eye of law. As a sequel, the proceedings shall remain stayed till final conclusion of the proceedings in the previously instituted suit. No order as to costs.

(Y.A.)  Petition allowed