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Civil Miscellaneous No. 1257 of 1969, decided on 3rd June 969.

S.11 and West Pakistan Family Courts (Amendment) Act (XV of 1967)‑Res judicata Husband filing suit for restitution of conjugal rights and obtaining ex parte decree from Family Court‑Wife subsequently suing for dissolution of marriage before separate Court on grounds of cruelty and seeking khula ‑Issues in both suits, held, different from each other‑Principle of res judicata, in circumstances, not attracted to wife's subsequent suit‑Principle of res judicata, held further, applies to suits under West Pakistan Family Courts Act, 1967 as well.

Mst. Shamim Fatima v. Ahmad Ullah Khan A I R 1947 All. 3 held not applicable.

S. 10‑Stay of suit- Essential requirement‑Identity of entire subject‑matter‑Every matter in dispute should be directly and substantially in issue in both suits‑One of several issues being common, held, not sufficient for stay of subsequent suit.

One of the principles for staying the suit under section 10, C. P. Code is that there must be identity of the entire subject matter of the two suits. In order to attract the provisions of section 10, it is necessary that every matter in dispute should be directly and substantially in issue in the two suits.

The husband sued for restitution of conjugal rights and the wife thereafter instituted a separate suit for dissolution of marriage on grounds of cruelty and sought for khula'. Issues framed in wife's suit were "as to whether the husband had levelled false allegations against the wife and whether the wife was entitled to decree on basis of khula ". There was only one common issue in both the suits, i.e. regarding cruelty of husband:

Held, the fact that only one issue is common to both suits is not sufficient for bringing the wife's suit within the scope of section 10, Civil Procedure Code, 1908, and the application of the husband for staying the subsequent suit of the wife was rejected.

Ch. Muhammad Afzal v. Mst. Sardar Begum P L D 1949 Lah. 16 rel.

Khalilur Rehman Khan for Petitioner.

Ch. Muhammad Abdullah for Respondent.

Dates of hearing : 30th May and 3rd June 1969.

This is an application under Article 102 of the late Constitution of 1962 for stay of Suit No. 51 of 1967 pending in the Family Court at Sialkot. It has arisen in the following. 'in, circumstances.

2. The parties were married at Sialkot on the 10th of February 1967. The rukhsati of respondent Mst. Nargis Sultana was to take place on the 26th of March 1967. It appears that for some reason or other the rukhsati did not take place. Consequently, on the 1st of September 1967, the petitioner filed a suit for restitution of conjugal rights in the Family Court at. Gujrat. After the service of the notice in the said suit, the respondent filed a suit for dissolution of marriage on the ground of cruelty and Khula in the Family Court at Sialkot on 27th of September 1967. The respondent resisted the suit for restitution of conjugal rights filed at Gujrat, amongst others, on the ground that that Court had no jurisdiction. The matter was fixed before the Gujrat Court for final hearing on the 2nd of December 1967,, when the respondent failed to appear and the case was adjourned to 8th of December 1967, for recording the ex parte evidence of the petitioner. The learned Family Court, Gujrat, decreed the suit on the 8th of December 1967. On the same date the respondent filed an application for setting aside the ex parte decree which was set aside on the 9th of December 1968. This order was challenged in appeal by the petitioner and on 18th of January 1969, the learned appellate Court set aside the order by which the ex parte decree for restitution of conjugal rights was set aside and remanded the case for fresh proceedings. The result is that the application for setting aside the ex parte decree passed by the Family Court is still pending in the Family Court at Gujrat.

3. In the suit filed by the respondent for dissolution of' marriage at Sialkot on the grounds of cruelty and Khula , the learned trial Court has framed the following issues on the pleadings of the parties :‑

(1) Whether the defendant has treated the plaintiff with cruelty

(2) Whether the defendant levelled false allegations against the plaintiff If so, to what effect

(3) Whether the plaintiff is entitled to a decree for the dissolution of marriage on the basis of Khula If so, on what terms

This suit was fixed for evidence of the parties on 3rd of February 1968, when the petitioner moved an application under Order XIV, rule 5, C. P. Code for additional issues. He contended that the suit for restitution of conjugal rights having been decreed and there being common issues in the two suits, the suit at Sialkot was liable to be dismissed under section 11, C. P. C. He further prayed that it should be stayed under section 10, C. P. Code. Thereupon, the learned Court added the following two preliminary issues :‑

(1‑A) Whether this suit cannot proceed

(1‑B) Whether the matter in dispute is res judicata between the parties

On the first issue, the learned trial Court, by judgment dated the 2nd of January 1969, held that it was not in the fitness of things to stay the proceedings in that suit. Issue No. (I‑B) was decided against the petitioner. The judgment of the Civil Judge, sitting as Judge, Family Court, Sialkot, was challenged before the District Judge, Sialkot, in Miscellaneous Civil Appeal No. 12 of 1969. The learned appellate Court upheld the judgment of the Family Court and held that the provisions of sections JO and 11, C. P. Code were not attracted to the suit for dissolution of marriage. It, therefore, refused to stay the proceedings. The petitioner has challenged this order in this matter. He has prayed that the suit at Sialkot is barred by res judicata. It should be stayed under section 10, C. P. C. He has further prayed that the two suits may be heard together and transferred to Gujrat.

4. The first question for consideration is whether the suit at Sialkot is barred under section 11, C. P. Code. It is needless to point out that under the West Pakistan Family Courts (Amend ment) Act (XV of 1967) sections 10 and 11 of the Civil Procedure Code have been made applicable to the suits under the West 4 Pakistan Family Courts Act. Mr. Khalilur Rahman Khan, learned counsel for the petitioner, contended that as ex parte decree has been passed against the respondent, the issues raised in the suit filed for dissolution of marriage are barred on the ground of res judicata and for this reason the said suit should be dismissed. In support of his contention, the learned counsel placed reliance on a decision of Allahabad High Court reported as MR. Shamim Fatima v. Ahmad Ullah Khan (A I R 1947 All. 3). In that case a Muslim woman filed a suit for dissolution of marriage on the ground of cruelty by the husband. In a previous suit for restitution of conjugal rights filed by the husband she had resisted the suit on the ground of cruelty by the husband. This question was put in issue and finally decided against her. It was held that no evidence was admissible upon the point as the question was rev judicata between the parties. It seems to me that the principle of this decision cannot apply to the facts of the present case. In the first place, no decision has been given in the suit for restitution of conjugal rights on merits. Secondly, the 'a issues in the two suits are different from each other. The only common issue is the question whether the petitioner has treated the respondent with cruelty. Moreover, an application for setting aside the ex parte decree is pending before the Gujrat Court and if the ex parte decree is set aside, the dispute between the parties will be reopened and will be decided afresh by the Gujrat Court. It will be further noticed that the respondent has claimed dissolution of marriage between the parties on the ground of Khula because the parties allegedly cannot live within the limits of God as husband and wife. The question whether the respondent is entitled to dissolution of marriage on this ground cannot be taken as a defence or considered in the suit for restitution of conjugal rights. This is entirely a new ground and a decision on this point in favour of the respondent will finally seal the relations between the parties. I am, therefore, of the view that the learned District Judge, Sialkot, was perfectly justified in holding that the provisions of section 11 of the Code of Civil Procedure are not attracted to the suit filed by the respondent for dissolution of marriage.

5. The next question for consideration is whether the suit should be stayed under section 10, C. P. C. Both the trial Court and the learned District Judge have held that this provision of law also cannot be attracted to the facts of the case in the suit for dissolution of marriage. I have reproduced in the earlier part of the judgment the issues in the suit for dissolution of marriage. It is admitted by learned counsel for the parties that no issues have been framed in the suit for restitution of conjugal rights but from the pleadings of the parties in the suit for restitution of conjugal rights it can be gathered that the only issue that is common in the two suits is the question whether the petitioner has treated the respondent with cruelty. The other two issues, namely, whether the defendant levelled false allegations against the plaintiff and whether the plaintiff is entitled to a decree for the dissolution of marriage on the basis of Khula do not arise in the suit for restitution of conjugal rights. One of the principles for staying the suit under section 10, C. P. Code is that there must be identity of the entire subject‑matter of the two suits. In order to attract the provisions of section 10, it is necessary that every matter in dispute should be directly and C substantially in issue in the two suits. It was held in Ch. Muhammad Afzal v. Mst. Sardar Begum (P L D 1949 Lah. 16) that where the matter in issue in the second suit is not precisely the same as in the first suit, the mere fact that one or two issues are common to the two suits should not be a ground for the stay of the subsequent suit. Considering the present case from this angle, it is quite clear that D there is only one issue which is common to the two suits and, therefore, this is not sufficient for bringing the subsequent suit filed at Sialkot within the scope of section 10 of the Civil Procedure Code. I would, therefore, hold that the learned subordinate Courts were perfectly justified in holding that section 10 is not applicable to the facts of the present case.

6. Lastly, it was urged by the learned counsel for the petitioner that the two suits may be heard together. The learned counsel for the parties have agreed that the suit for restitution of conjugal rights filed by the petitioner at Gujrat may be transferred to Sialkot and the two suits be heard by one of the Family Court Judges at Sialkot. I would, therefore, transfer both the suits to the Court of Ch. Ghulam Rasul, Judge, Family Court, Sialkot, and direct him to dispose of both the suits at an early date.

7. In the result, subject to the remarks made above, the petition is allowed with no order as to costs.

A. E. Appeal dismissed.

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