2023 C L C 685
[Balochistan]
Before Muhammad Ejaz Swati and Iqbal Ahmed Kasi, JJ
SHAHEEN ALAM and 3 others ----Petitioners
Versus
Mst. BIBI SALMA (Widow) and 7 others ----Respondents
C.P. No.1250 of 2022, decided on 31st August, 2022.
(a) Civil Procedure Code (V of 1908) ---
----S.10 ---Stay of suit ---Difference in cause of action ---Scope ---Plaintiffs filed a suit for
declaration and cancellation regarding suit property ---Defendants filed an application under
O.VII, R.11, C.P.C.--- Application filed by defendants was dismissed, however, the Trial
Court stayed the suit till disposal of earlier suit filed before High Court of Sindh regarding
suit property--- Revisional Court remanded the case back to the Trial Court with direction to
proceed with the ca se in accordance with law ---Validity ---Suit filed by plaintiffs in the High
Court of Sindh was an administrative suit filed under the provisions of Succession Act, 1925---Cause of action of that suit was of distribution, partition and equal apportionment of legal shares between the legal heirs ---Suit filed by plaintiffs before the Civil Court was a regular
suit for immovable property and it was alleged that the property was illegally transferred through forged and fake power of attorney--- Cause of action of the present suit was quite
different from the suit pending before the High Court of Sindh---Constitutional petition was dismissed.
(b) Civil Procedure Code (V of 1908) ---
----S.10 ---Stay of suit ---Scope ---Five conditions must be fulfilled in order to app ly
provisions of S. 10 of C.P.C., which are (i) the matter in issue in both the suits must be directly and substantially the same; (ii) the previously instituted suit must be pending in a court of competent jurisdiction; (iii) the court before which the pr evious suit is pending must
be competent to grant the relief in the subsequent suit; (iv) both the suits must be between the same parties and (v) the parties must be litigating in both the suits under the same title.
(c) Succession Act (XXXIX of 1925) ---
----S.278--- Petition for letters of administration ---Scope ---Administration suit in view of the
Succession Act, 1925 includes the collection of assets of deceased, the payment of debts and
distribution of residue to persons beneficially entitled under the will of the testator or on his intestacy.
Iftikhar Ahmed Langove for Petitioners.
Date of hearing: 15th August, 2022.
JUDGMENT
IQBAL AHMED KASI, J. ----The instant Constitutional Petition filed under Article
199 of the Constitution of Islamic Republic of Pakistan, 1973, carries the following prayer
clause:
"It is therefore, most respectfully prayed that the record from the court below may kindly be called for and after perusal of the same the impugned order dated 25th June, 2022, passed by the Additional District Judge -IX, Quetta (Respondent No. 8) be set
aside / declared null and void and in consequence thereof the order dated 29th April, 2022, passed by Civil Judge -I, Quetta be restored in the interest of Justice, Equity and
Fair Play."
2. Brief facts of the case are that the respondents Nos.1 to 3 / plaintiffs filed a suit for
declaration, cancellation of mutations / transfer on forged and fake power of bases transfer of property, situated at Railway Housing Scheme Quetta, Plot No.C -1(A) measu ring 6006 sq.ft.
("the property in dispute") and permanent injunction with the averments that the respondents Nos.1 to 3 / plaintiffs are legal heirs of Mir Salar Khan (mentioned in the suit as Safar Khan),
who died on 16/10/2000, leaving behind number of properties in different cities of the
Country including the property in dispute. It is further averred that since the whole family
members of the respondents Nos. 1 to 3 / plaintiffs had shifted to Karachi, therefore, the predecessor -in-interest of the pet itioners / defendants namely, Muhammad Alam, who is their
parental uncle, was looking after the property in question, and also made a forged power of attorney dated 28.01.2002, on behalf of the respondents Nos. 1 to 3 / plaintiff. The said Muhammad Alam wa s died / martyred on 16.10.2000, but his legal heirs on the basis of said
power of attorney, with concealments of facts and in a fraudulent manner, succeeded to got transfer the property in dispute on their names.
3. Meanwhile, the petitioners / defendants , in-spite of filing written statement, filed an
application under Order VII, Rule 11, C.P.C. for rejection of the plaint, which was though rejected by the Civil Judge -I, Quetta ("the trial Court"), vide order dated 29th April, 2022,
however, it was furthe r observed that since Section 10 of C.P.C. bars proceedings with case
in hand by this Court, resultantly, proceedings with case in hand is stayed till disposal of suit earlier filed before Hon'ble High Court of Sindh at Karachi.
4. The respondents / plaint iffs Nos.1 to 3, being aggrieved of the order of the trial Court,
filed a Civil Revision Petition Under Section 115, C.P.C. before the Additional District Judge -IX, Quetta ("the revisional Court"), who vide order dated 25th June, 2022 ("the
impugned order" ) allowed the petition, set aside the order dated 29th April, 2022, and
remanded the case back to the trial Court with the direction to proceed the case in accordance with law, hence this petition.
5. Learned counsel for the petitioners / defendants Nos.1 to 4 contended that the trial
Court has passed a well reasoned and speaking order, while dilating upon the Section 10 of
the C.P.C. but the revisional Court has failed to appreciate this legal aspect of the case and set aside the order of the trial Court, which is otherwise illegal, unlawful and liable to be dismissed; that a suit with the same subject matter and between the same parties was filed earlier to the suit in hand, and the trial Court just to avoid conflicting observations and to
protect the righ ts of either party, but the revisional Court ignored such legal aspect of the
matter and set aside the order of the trial Court, which is legally not maintainable and liable
to be set aside.
6. We have heard the learned counsel for the petitioners and have gone through the
available record, which reveals that the respondents Nos.1 to 3 filed a suit for declaration, cancellation of mutation transfer on forged and fake power of attorney and permanent injunction against the petitioners and other respondents. T he petitioners instead of filing
written statement, filed an application under Order VII, Rule 11, C.P.C. for rejection of the suit on the ground that a suit is already pending before the High Court of Sindh at Karachi, regarding the same property. The per usal of the record reveals that the suit pending before
the High Court of Sindh at Karachi is for administration, partition, possession and permanent injunction and though the trial Court rejected the application under Order VII, Rule 11,
C.P.C., but surpr isingly stayed the suit. It also appears from the record that the said suit is
still pending adjudication in office objection on maintainability of the said suit. Moreover, it
also appears from para No.9 of the suit that deceased Muhammad Alam son of Mir S hadi
Khan was lastly residing at Karachi and also died there, therefore, the administration suit was filed before the High Court of Sindh at Karachi.
7. Furthermore, as the trial Court stayed the suit while taking backing of Section 10,
C.P.C., therefore, it would be appropriate to reproduce the same:
"10. Stay of suit.---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 bet ween 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 establish ed or continued by the Central Government and
having like jurisdiction, or before the Supreme Court."
In order to apply provisions of Section 10, C.P.C., five conditions must be fulfilled, which reads as under:
"1) The matter in issue in both the suits mus t be directly and substantially the same.
2) The previously instituted suit must be pending in a court of competent jurisdiction.
3) The court before which the previous suit is pending must be competent to grant the relief in the subsequent suit.
4) Both t he suits must be between the same parties or their representatives.
5) The parties must be litigating in both the suits under the same title.'
8. It is settled law that if all the conditions aforementioned are fulfilled, it is mandatory
upon the Court trying the subsequently initiated suit to stay the proceedings in the suit, but
perusal of record reveals that the suit filed in the High Court of Sindh at Karachi is administrative one and the same was filed under the Succession Act, 1925, therefore, under Section 371 of the said Act, the litigation can be filed where the deceased was ordinary resided at the time of his death, meaning thereby, the High Court of Sindh at Karachi also did
not entertain the said suit, as regular civil suit.
9. Legally, administration suit in view of the Succession Act, 1925 includes the
collection of assets of deceased, the payment of debts and distribution of residue to persons beneficially entitled under the will of the testator or on his intestacy. In view of such, it is cleared that the suit filed by the respondents before the High Court of Sindh at Karachi is an administration suit, filed under the provisions of Succes sion Act, 1925. The cause of action
of that suit is of distributed, partition and equal apportionment of their respective legal shares between the legal heirs of late Muhammad Alam. The present suit filed by respondents Nos.1 to 3 before the Civil Judge -I, Quetta is a regular suit for immovable property, which has been
alleged to have been transferred illegally through forged and fake power of attorney. The cause of action of the instant suit is quite different from the suit pending before the High Court of Sindh at Karachi. Perusal of the record further reveals that the application filed by
the petitioner before the trial Court under Order VII, Rule 11, C.P.C. is not fulfilling the five conditions, as mentioned in para supra, nor fulfills the conditions for the reason that the
instant suit is of different cause of action with different title and between different parties. More so, the question of applicability of Section 10, C.P.C. in view of the facts and circumstances of the case does not arise at all on t he reason that the nature of both the
matters i.e. administration suit pending before the High Court of Sindh at Karachi and present suit filed before civil jurisdiction of Quetta are quite different in nature and with
different cause of action.
In view of above, we find no reasoning to interfere in the order of the lower revisional
Court, as such, the instant Constitutional Petition No. 1250 of 2022, is hereby dismissed in limine.
SA/153/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.