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Civil Revenue Application No. 77 of 1980, decided on 25th October, 1981.

‑S. 10‑Suit subsequently instituted‑Stay of‑Respondent No. 1 instituting suit for recovery of damages for breach of contract against applicant in Small Causes Court‑Subsequently applicant also filing civil suit for recovery of damages for breach of same contract against respondent No. 1 in Court of Senior Civil Judge‑On respondent No. 1's application under S. 10, C. P. C., Senior Civil Judge staying applicant's suit‑Held, Courts of Small Causes and Senior Civil Judge are not of concurrent jurisdiction as such provisions of S. 10 not applicable.

Municipal Board, Lucknow v. Government of United Province A I R 1943 Oudh 58 and Malotra & Co. v. Sukhdyal Kapur A I R 1928 Sind 169 rel:

Kub Lal v. Gulzari Lal A I R 1927 All. 297 ; Sakhawat Hossain v. Muhammad Sarwar P L D 1968 Dacca 557 ; Foundation Engineering Ltd. v. The 4th Junior Lahore Court, Karachi P L D 1976 Kar. 99 ; Cassamali Alibhoy v. Abdul Sattar P L D 1966 Kar. 13 ; Pakistan Industrial Credit and Investment Corporation Ltd., Karachi v. Modern Embroidery & Textile Mills Ltd., Lahore P L D 1976 Kar. 249 and Raj Spinning Milt's v. A. G. King Ltd. A I R 1954 Puj. 113 and A I R 1947 Nag. 154 rel.

Muneer A. Malik for Petitioner.

Ghulam Muhammad for Respondents.

Date of bearing : 25th October, 1981.

The applicant above‑named, being aggrieved by order dated 26th February, 1980, passed by II‑Senior Civil Judge A. S. J. Karachi, in Suit No. 2244 of 1978, which was filed by the applicant, for recovery of Rs. 20.450, whereby his said suit has been stayed, pending disposal of earlier Suit No. 1291 78 filed by Respondents in the court of Small Causes Court, Karachi for recovery of Rs. 3,550 has preferred this petition on the following facts and grounds :‑

2. That on or about 28‑2‑1977, applicant contracted to purchase from respondents 50 Metric Tons of M. S. Bars. Thereafter a dispute arose between the parties in respect of the performance of the said contract and each party blamed the other for breach of contract. In view of this respondent No. 1 filed Suit No. 129/78 on 18‑2‑1978 in the Court of Small Causes Court for recovery of Rs. 3,550 by way of damages for alleged breach of the contract, whereas appellant filed suit No. 2244,/78 in the Court of II‑Senior Civil Judge, Karachi for recovery of Rs.20,450 against the respondents, by way of damages for alleged breach of contract. Respondent No. 1 filed application under section 10, C. P. C. in Suit No. 224/78 for stay of the said suit, on the ground, that both the suits relate to same subject -matter.

3. The learned Senior Civil Judge, after hearing both the parties on the said application filed by Respondent No. 1 was pleased to stay suite No. 2244/78, which was filed by the present applicant, pending disposal of Suit No. 129 of 1978 which was pending between the parties, in respect of same contract, vide his order dated 16‑2‑1980. The applicant above‑named, being aggrieved by the said order, has preferred this Revision Application on the following grounds :‑

(a) That the learned Civil Judge has failed to appreciate that be cannot exercise his jurisdiction under section 10 of the Civil Procedure Code, unless the Court in which the previous suit is pending is competent to grant the relief claimed in the subsequent suit.

(b) That although the learned Senior Civil Judge agreed, that to attract the provision of section 10, C. P. C. it is necessary that both the courts should have concurrent jurisdiction in the matter, he has stayed the subsequent suit, till the decision of the previous suit. Such finding is ex facie illegal.

4. I have heard both the learned counsel of the parties and have gone through the order dated 26‑2‑1980 of the learned Senior Civil Judge, Karachi, and have gone through the authorities cited by both the parties before me.

5. The learned Advocate for the applicant submitted, that since the court of Small Causes Court, Karachi, in which suit filed by respondent No. 1 is pending, has no jurisdiction to grant relief claimed in the suit filed by him, which has been stayed, the provisions of section 10, C. P. C. are not at all attracted and as such the order dated 6‑2‑1980 of the learned Senior Civil Judge, Karachi cannot be sustained. In support of this contention of his, the learned Advocate for the applicant relied upon cases in P L D 1966 Kar. 13, P L D 1976, Kar. 249 ; A I R 1954 Punj. 113, A I R 1947 Nag. 154, A I R 1943 Oudh 58 ; A I R 1927 All. 297 and P L D 1968 Dacca 557.

6. The learned Advocate for the respondents, on the other hand relied upon the cases in P L D 1976 Kar. 99 and P L D 1966 Kar. 13 and submitted that the order dated 26‑2‑1980 of the learned Senior Civil Judge, Karachi, is legal and correct and ought not to be interfered with in this petition.

7. I have carefully considered the submissions of both the counsel and have carefully gone through the various authorities cited by them before me.

8. The only question that is raised in this Revision Application is the interpretation of provisions of section 10, C. P. C. which reads as under :‑

"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 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."

In order that the provisions of section 10, C. P. C. be applicable, following five conditions must be fulfilled

(i) The matter in issue is both suits must be directly and substantially the same.

(ii) The previously instituted suits must be pending in a court of competent jurisdiction.

(iii) The court before which the previous suit is pending must be competent to grant the relief is the subsequent suit.

(iv) Both the suits must be between the same parties or their represen tatives.

(v) The parties must be litigating in both the suit under the same title.

If all the above‑mentioned conditions are fulfilled, the subsequent suit according to the provisions of section 10, C. P. C. must be stayed. However, if any one of the above‑mentioned conditions are not present, then too the subsequent suit can be stayed under section 151, C. P. C. in the interest of justice as held by many authorities, provided the decision in the previously instituted suit would attract the provisions of section 11, C. P. C.

9. The main contention on which the learned counsel for the applicant has attacked the impugned order is, that the Small Causes Court where the previously instituted suit is pending cannot grant relief claimed in the subsequent suit, on account of the limited pecuniary jurisdiction of Small Causes Court and the decision of the Small Causes Court, Karachi on the issue of breach of contract would not be res judicata, as far as applicant's suit that has been stayed. In support of this contention, the learned counsel for the applicant has relied upon cases in A I R 1927 All. 297 and A I R 1943 Oudh 58. These cases are based on the interpretation of section 11, C. P. C. and as such in my opinion, have no bearing on the present matter. The other authority on which the learned counsel for the applicant has relied upon is the case in A I R 1947 Nag. 154 which lays down that section 10, C. P. C. would apply to subsequent suit, if final decision in previous suit would operate as res judicta, in the subsequent suit. It has also been held in a case in A I R 1928 Sind 169, that if the previously instituted suit is not pending in a Court having jurisdiction to grant relief claimed in the subsequent suit, the Court in which the subsequent suit is filed is not barred to go into the same question. The rest of the authorities cited by the learned counsel for the applicant, in my opinion, have no bearing on the present matter.

10. In my opinion, decision if any, given in the previously instituted suit by the Small Causes Court, Karachi will not operate as res judicata, as the Small Causes Court is not competent to try subsequent suit in question, on account of its limited pecuniary jurisdiction and consequently the Small Causes Court, Karachi and the Court of learned IInd Senior Civil Judge/ A. S. J., Karachi are not the courts of concurrent jurisdiction and as such, the provisions of section 10, C. P. C. are not applicable to the subsequent suit filed by the applicant, in the court of Had Senior Civil Judge/A. S. J. Karachi. In view of this, the impugned order cannot be sustained.

11. Therefore I allow the above Revisions Application and set aside the impugned order dated 26th February, 1980 of the learned IInd Senior Civil Judge/A. S. J., Karachi, with no order as to costs. However, in the interest of justice and in order to avoid conflict of decisions in both these suits, as they arise out of the same contract, in the exercise of my powers under section 24, C. P. C. after having heard the learned counsel for both the parties, to whom notice was issued by me in this connection, I direct that suit No. 129 of 1978, which is pending in the court of Small Causes Court, Karachi, be transferred to the court of land Senior Civil Judge/A. S. 1., Karachi and I further direct the learned IInd Senior Civil Judge/A. S. J., Karachi to dispose of both these suits together.

K. M. A. Application allowed.

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