Abdul Raziq and another Vs Adnan Khan and 02 others

JUDGMENT SHEET

PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

Civil Revision No. 824-P/2024.

Abdul Raziq and another Vs. Adnan Khan and 02 others.

Date of hearing: 07.10.2026

Mr. Abdul Hafeez, Advocate for petitioner.

M/s Mohammad Ismail Khalil and Shakeel Ahmad Khalil, Advocates for respondents.

JUDGMENT

MUHAMMAD NAEEM ANWAR, J: - The validity and correctness of the order dated 13.09.2024, passed by the learned Additional District Judge-XII, Peshawar, whereby the application filed by the respondents for staying proceedings in the civil suit titled Abdul Razzaq and another v. Adnan Khan and others, pending decision of Civil Suit No. 114/1 titled Muhammad Adnan Khan v. Abdul Razzaq and others, was allowed, have been called into question through the instant civil revision petition.

2.Arguments heard and record perused.

3.The record reveals that respondent No. 1, Muhammad Adnan Khan, instituted Civil Suit No. 114/1 on 06.05.2024, claiming ownership and possession of the property described in headnote Alif, situated in the revenue estate of Pishtakhara Bala, Tehsil Mattani, District Peshawar. He challenged Registered Deed No. 1501 dated 29.12.2023, executed by his brother, Kamran Khan, in favour of Abdul Razzaq, alleging that the alienation was illegal, collusive, mala fide, and ineffective against his rights. His case was that his brother had already alienated his entire proprietary interest in the property; therefore, the subsequent revenue entries in his favour were incorrect and could not confer upon him any subsisting right to transfer the property. Accordingly, he sought a declaration, cancellation of the impugned deed, correction of the relevant revenue record, and a perpetual injunction to restrain interference with his asserted proprietary and possessory rights. The suit is pending before the learned Civil Judge-XIX, Peshawar, and

respondent No. 2 has submitted his written statement. The petitioners, on the other hand, instituted a separate suit on 18.05.2024 against respondent No. 1, Kamran Khan, and Mst. Shehpara, wife of Kamran Khan, claiming ownership and possession of a constructed market comprising 40 shops over an area measuring 4 kanals and 1 marla, situated in Khasra Nos. 3120, 3119, 3111 and 4586, revenue estate of Pishtakhara Bala, on the basis of sale agreements dated 17.02.2017 and 26.03.2018. They relied upon Mutation Nos. 10572, 10573, 10588, 10620, 10621 and 11242, asserting that the relevant shares had been transferred in their favour. They sought a declaration of their rights, specific performance of the sale agreements, a perpetual injunction against interference with their possession and proprietary rights, and recovery of rent at the rate of Rs. 250,000 per month, subject to an annual increase of 15%, until delivery of actual possession. Their case was that the entire sale consideration, including Rs. 1.5 crore, had been paid to their vendors and that the defendants had no subsisting right or interest in the property. Respondent No. 1 sought a stay of the petitioners’ suit on the ground that it was a counterblast to his earlier suit and that both proceedings concerned the same property. The application was contested but was allowed by the learned Additional District Judge-XII, Peshawar, vide the impugned order dated 13.09.2024.

4.Section 10 of the Code of Civil Procedure, 1908, prohibits the trial of a subsequently instituted suit where the matter in issue is directly and substantially the same as that in a previously instituted suit between the same parties, or parties litigating under the same title, and the earlier suit is pending before a competent Court. The object is to prevent parallel trials, avoid multiplicity of litigation, and preclude conflicting judgments. Where the statutory conditions are fulfilled, the provision is mandatory, and the subsequent suit must be stayed. The decisive consideration, however, is whether the adjudication of the earlier suit would operate as res judicata or otherwise determine the matter directly and substantially in issue in the subsequent suit. Mere similarity of subject matter or some

overlapping issues, without satisfaction of the statutory requirements, does not automatically attract Section 10 CPC.

5.Examined in this context, the two suits arise from distinct claims of title and different transactions, although they concern properties situated in the same revenue estate and may involve overlapping questions regarding the proprietary rights of the parties. Respondent No. 1 challenges the registered deed executed in favour of Abdul Razzaq on the premise that Kamran Khan had already alienated his entire interest and that the subsequent revenue entries were erroneous. The petitioners, however, assert their independent rights under the sale agreements dated 17.02.2017 and 26.03.2018, supported by the relevant mutation entries. Their claim concerns the constructed market comprising 40 shops situated in specified khasra numbers. The record, as presently available, does not establish that the property covered by the impugned registered deed and the property forming the subject matter of the petitioners’ suit are identical in their entirety or that the decision in the earlier suit would necessarily determine the petitioners’ independent claims. Furthermore, Kamran Khan, whose alleged prior alienation constitutes the foundation of respondent No. 1’s claim, has contested the latter’s suit while also acknowledging the petitioners’ claim. Such circumstances reinforce the need to determine the respective rights of the parties through proper adjudication rather than to suspend one suit merely because another proceeding involving related property claims is pending. The petitioners’ rights under the sale agreements, the legal effect of the relevant mutations, and the precise extent of any overlap between the properties are matters to be determined on the basis of the pleadings and evidence. In the absence of a clear finding that the statutory conditions of Section 10 CPC are fulfilled, the petitioners’ suit could not lawfully be stayed merely on the ground that respondent No. 1 had instituted his suit earlier.

6.Even where the subject matter and issues in two suits overlap, a stay under Section 10 CPC is not to be ordered mechanically. The Court must examine the nature of the respective claims, the reliefs sought, the identity of the matter directly and substantially in issue,

and the legal effect that the decision in the earlier suit would have upon the subsequent proceedings. Where the claims are interconnected but the suits involve distinct or independent reliefs, consolidation and simultaneous adjudication may provide a more effective means of avoiding conflicting findings and ensuring the just and expeditious resolution of the controversy. In Muhammad Yaqoob v. Behram Khan (2006 SCMR 1262), the Honourable Supreme Court upheld the order directing consolidation of the suits and setting aside the stay of proceedings in the subsequent suit. It observed that where a common subject of claim is involved in cross- suits, consolidation and joint adjudication are appropriate to avoid conflicting decisions. The Court further held that consolidation may be ordered in the exercise of inherent powers, without requiring the consent of the parties, to prevent multiplicity of litigation, contradictory judgments, and abuse of the process of the Court. The principle laid down therein squarely guides the course to be adopted in the present matter. Since both suits involve interrelated claims concerning proprietary rights in the same revenue estate, and their separate adjudication may result in inconsistent findings on overlapping questions, simultaneous adjudication would better serve the ends of justice, provided that the competent Court has the requisite jurisdiction. The impugned order, by staying the petitioners’ suit without adequately determining whether the mandatory conditions of Section 10 CPC were satisfied, cannot be sustained.

7.It is further evident that the petitioners’ suit is pending before the learned Additional District Judge-XII, Peshawar, whereas respondent No. 1’s suit is pending before the learned Civil Judge- XIX, Peshawar. The suits are pending before different Courts on account of their respective valuation and pecuniary jurisdiction. As the suit pending before the learned Civil Judge may, subject to the applicable jurisdictional requirements, be tried by the learned Additional District Judge, the appropriate course is to seek transfer of the former suit to the Court competent to adjudicate both matters, so that they may be heard and decided simultaneously. Such a course would avoid unnecessary delay, preserve the parties’

respective claims for adjudication, and minimize the possibility of conflicting judgments.

8.For the foregoing reasons, the impugned order dated 13.09.2024 is set aside, and the instant civil revision petition is allowed. The petitioners’ suit shall proceed in accordance with law. The parties shall be at liberty to approach the competent Court for transfer of respondent No. 1’s suit to the Court of the learned Additional District Judge-XII, Peshawar, or to such other Court as may lawfully be directed, for simultaneous adjudication of both suits, subject to the applicable requirements of jurisdiction and procedure. There shall be no order as to costs.

Announced on;

07th of October, 2026 *Zarshad*

JUDGE

(SB)Hon’ble Mr. Justice Muhammad Naeem Anwar CR No. 824-P/2024