Muhammad Saleem VS Muhammad Yousuf Adil Saleem

ORDER SHEET

IN THE ISLUVIABAD HIGH COURT. ISLUW\BAD

crul- suIT NO.22l2011.

MUHAMMAD SALEEM & ANOTHER I4S. S M.YOUSAF ADIL SALEEM & CO ETC Serial No. of Date or order of Order with signatures ofjudge, and that of parties or Order of proceedings. counsel, where necessar1r. Proceedings.

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13 13.07.20fi Rojo Zofor Kholig Khon ASC, f or the oppliconts- defendonts.

M/s Mr. Muhqmmod Afzal Siddigui ASC, Mr. Amjod Homeed Ghouri ond Mr. Homid Ahmod, Advocotes for the respondents-Plointiffs.

Ctrt No.470-Sl2011

This is on opplicotion under Section 10 of CPC filed by the defendonts stoting therein thot the some issue which is the subject motter in this suit i.e the dispute regarding the circulors / resolutions ond os to whether the plointiffs / respondents con be suspended or removed ond whot are the powers of the Boord ond portners under the portnership deed doted 07.12.2006, is pending before Hon'ble High Court of Sindh, Korochi.

2.According to the opplicont, the instont suit hos been filed subseguent to civil Suit No.8/2011 and is hit by principle of Res subjudice becouse the motter in issue before this Court is directly ond substontiolly in issue between the some porties ond since theproceedings before the Sindh High Court were instituted prior to the filing of present suit, the present suit is to be stoyed to ovoid conf licting judgments.

3.The leorned counsel for the defendonts-opplicants while supporting tha CM relied upon the following cose lows reported os "l4uhammad Younas Vs. Nargis Sulfana" (PLD 1970 Lahore 41), '6hulam tltlusfafa Vs. Family Judge / Qazi,

-2- Civil Suit 22/201 I Muhammad Saleem & Anotlrcr Versus.

Ws Yousaf Adil Saleem & Co Etc.

Kharan and Anofher" (PLD 1984 Queffa 43), "Bashirullah lhunshi Vs. Abdul Bari Bepari and Ofhers" ( PLD 1969 Docca 95O). "14/s Nigar Picfures, Karachi Vs. rl4/s United Brofhers, Lahore and 6 Ofhers" (PLD 1970 Karachi VO), "Syed Alauddin Ahmed Vs. rl4DF. lhustafa" (PLD 1971 Dacca 286), "Pakisfan fndustrial Credit and fnvesfmenf Corporation Lfd..Karachi Vs. tlhodern Enbroidery & Textile lLills Ltd.

Lahore and 6 Others" (PLD 1976 Karachi 249), "Qovernnenf of Baluchistan through the 5ecretary, frrigafion and Power Deparfment, Queffa and 2 Ofhers Vs. Haji Khudai Ndzar", "Habib Bank Ltd Vs. Ali tlrlohtaram Naqvi" (PLD 1987 Karachi IOZ), "Dr.Haider Ali tl4ithani and another Vs. fshrat Swaleh and Others" (PLD 1999 Karachi 81), and Sakhawat Hossain Vs. (i) Ch. l4uhanmad Sarwar, And (2) the National Bank of Pakistan" (PLD 1968 Dacca 557).

4.The case lows ore on the point thot for stoying the suit under Section lO CPC it is necessory thot every motter in dispute should be directly ond substontiolly be the some in the two suits. According to the cose low reported os PLD 1999 Korachi 8t, there are five essentiol ingredients which must be fulfilled before stoy of subseguently instituted suit. These ore that motter in both the suits be the some; previously institufed suit must be competent, court must be competent to gront relief , both the suits must be 5etween the some porties ond the porties must be litigating in both the suits under the some title.

Muhammad Saleem & Another Versus.

Ws Yousaf Adil Saleem & Co Etc.

5.The opplicotion wos contested by the plaintiffs through their rejoinder wherein the mointoinobility of the opplicotion wos chollenged ond it wos submitted thot scope of Section 10 CPC is not ottrocted to the present motter os the two suits turn on dtfferent porometers ond odjudicotion of one does not cover the issues likely to orise in the other. ft wos further submitted thot present suit orises out of o fresh couse of oction creoted due to events hoppened oftet the institution of Sindh cose p?oceedings ond, therefore, there is no likelihood of conf licting judgments.

6 The leorned counsel for the plointiffs relied upon the outhorities reported os "sakhawat Hossain Vs. (i) Chowdhury tbluhammad Sarwar, And (2) The National Bank of Paktstan---Opposite-Parties" (PLD 1968 Dacca 557) and "tlhuhammad Younas Vs. Nargis Sulfan" (PLD 1970 Lahore 41).

The outhorities Gre on the point thot stoy of suit con be directed only, when there is identity of entire subject motter ond if the reliefs in the suit ore different then proceedings connot be stoyed

7 Heard ond record perused

I According to the Civil Suit No.8/2011, pending before Sindh High Court, Korochi the dispute is obout the circulors resolutions of the Boord, the oppointment of plointiff No.3 as Chief Executive of the Firm ond the violotion of the portnership deed 2006

9 According to thqt suit declorotions have been sought to the eff ect thot the circulors resolutions be

Muhammad Saleem & Another Versus.

Ws Yousaf Adil Saleem & Co Etc.

declored legol ond binding on qll the porties, with further proyet thot Muhommod Yousof Adil hos been lowfully oppointed os Non-Executive Choirmon of the Boord ond plointiff No.3 os CeO, while defendant No.l Muhommod Soleem hos been legally suspended os o pqrtner. On the bosis of these declorotions, on injunction hos been sought restroining the defendonts from posing os portners of the Firm or to interf ere in the offoirs, monogement ond odministrotion of the Firm.

10.On the other hond, occording to the present suit, the couse of oction occrued when the defendonts indulged in conspirocy to oust the plointiff on the bosis of fobricoted Boord Resolutions which ore def aming the plointiff

11.The proyer hos, therefore, been mode thot the so colled resolutions ond notice doted 27.Ol.20ll colling a meeting of the Boord of the Firm be declored os void ob initio ond the publication of f alse informotion ond other octs bosed on the fobricoted Boord Resolutions ore destructive to the goodwill of the plointiff ond omounts to committing of serious tronsgression ogoinst the plointiffs' rights, therefore, for their omissions ond commissions they are to poy o sum of Rs.100 Crores eoch to the plointiffs os domoges Consequently o relief is sought for permonent injunction restroining the defendonts from toking ony meosures on the bosis of fictitious resolutions or from moking any interf erence in the business ond working of the plointiffs.

Muhammad Saleem & Another Versus.

M/s Yousaf Adil Saleem & Co Etc.

12.A perusal ond comporison of these ploints would show thot the moin controversy between the parties qrose aftel. the possing of resolutions, which occording to present plointiffs ore f ictitious

13 Second dispute is obout the Election /

oppointment of Non-Executive Choirmon ond CEO of the Firm os well os ousting of present plointiff as Boord member Though through the present suit, the dqmoges of Rs.200 Crores hove olso been sought, yet the foct remoins thot the reol issues between the porties ore obout the offoirs of the Firm on the bosis of the Boord Resolutions. One porty insists obout its legolity, while the other condemns them os illegol.

Therefore, in my view both the suits connot run concurrently Section 10 is reproduced os below;

"No Courf shall proceed wifh fhe trial

of any suit in which the matter in issue is also directly and subsfantially in issue in a previously institufed suit befween fhe same parfies. or befween parties under whon they or any of them clain, litigating under the same tifle, where such suit is pending in the same or any other Courf in Pakisfan having jurisdicfion to granf fhe relief claimed, or in any Courf beyond the limits of Pakistan established or continued by the Cenfral Oovernment and having like jurisdicfion, or before the Supreme Court.

t4 It is on odmitted foct thot Civil Suit No.08/2011 wos filed earlier at Korochi thon the present one. Since the moin disputes in both the suits ore between the some porties,

Muhammad Saleem & Another Versus.

M/s Yousaf Adil Saleem & Co Etc.

obout the some subject motter ond the issues would olso be the some, the proceedings of present Civil Suit No.22 /?Otl ore stayed till disposol of Civil Suit No.8/2011

15.The opplicotion is accePted

tuunaurvr en KIIAN rrAs_I)

JUDGE.

AMCR.BAId.

Uploaded By : Engr. Umer Rasheed Dar