Delhi High Court
Bhagwan Singh vs S.K.Jha & Ors on 3 December, 2012
Author: M. L. Mehta
* THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 03.12.2012
+ CM(M) 1206/2012
BHAGWAN SINGH ..... Petitioner
Through Mr. P.C. Dhingra, Advocate.
versus
S.K.JHA & ORS ..... Respondent
Through
+ CM(M) 1209/2012
BHAGWAN SINGH ..... Petitioner
Through Mr. P.C. Dhingra, Advocate.
versus
S.K.JHA & ORS ..... Respondent
Through
+ CM(M) 1212/2012
BHAGWAN SINGH ..... Petitioner
Through Mr. P.C. Dhingra, Advocate.
versus
S.K.JHA & ORS ..... Respondent
Through
CM (M) 1206, 1209, 1212 & 1213 of 2012 Page 1 of 6
+ CM(M) 1213/2012
BHAGWAN SINGH ..... Petitioner
Through Mr. P.C. Dhingra, Advocate.
versus
S.K. JHA & ORS ..... Respondent
Through
CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA
M.L. MEHTA, J. (Oral)
CM No. 18876/2012 (Exemption) in CM(M) 1206/2012
CM No. 18915/2012 (Exemption) in CM(M) 1209/2012
CM No. 18924/2012 (Exemption) in CM(M) 1212/2012
CM No. 18927 /2012 (Exemption) in CM(M) 12013/2012
Allowed, subject to all just exceptions.
Applications are disposed of.
CM(M) 1206/2012 and CM No. 18875/2012 (Stay)
CM(M) 1209/2012 and CM No. 18914/2012 (Stay)
CM(M) 1212/2012 and CM No. 18924/2012 (Stay)
CM(M) 1213/2012 and CM No. 18926/2012 (Stay)
1. These four petitions under Article 227 of the Constitution of
India are directed against the order dated 01.10.2012 of Civil Judge -
02 (North) whereby these four applications U/s 10 read with order 7
rule 11 CPC were dismissed.
2. The respondent No.5 herein namely Bhagwan Singh son of Raj
Karan had field five suits against respondent Nos. 1 to 4, for
cancellation of five sale deeds dated 06.12.2011 and for declaration
and permanent injunction. One of the suits bearing No. 698/2006 was
proceeded ex-parte against the defendants, but ultimately was
dismissed vide judgment dated 12.01.2011. In the remaining four
suits, the eptitioenr herein filed an applications U/s 10 r/w Order 7 rule
11 CPC seeking stay of these four suits on the ground that the issue
arising in these suits has already been decided by the court in the suit
No. 698/2006 whereby the said suit has been dismissed on the ground
of being barred by limitation. The civil judge dismissed all the four
applications observing that all the five suits were filed together on one
day and so could not be said that suit No. 698/2006 was instituted prior
in time. She also observed that appeal against the judgment of
12.01.2011 had been preferred by the plaintiff therein in the appellate
court and so it could not be said that the issue is finally decided.
3. The instant petitions have been filed assailing the impugned
order. The submission which have been made before me by the learned
counsel for the petitioner are same what were made before the Civil
Judge that the finding in the earlier suit recorded in judgment dated
12.01.2011 would operate as res judicata in these suits and thus all
these suits are liable to be stayed or to be rejected for want of cause of
action and also being barred by limitation. Here also the reliance is
placed on the same judgment titled Pukhraj D. Jain and others Vs.
G. Gopalakrishna AIR 2004 SC 3504.
4. Having heard the learned counsel for the petitioner, I do not see
the applicability of the provisions of Section 10 or Order 7 rule 11
CPC. The aforesaid five suits were filed by respondent No.5 against
the four defendants (respondent Nos. 1 to 4 herein) seeking
cancellation of five separate sale deeds in respect of different portions
of the premises.
5. In the case of Pukhraj D. Jain (Supra) the principles of
Section 10 of CPC were reiterated that 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 India having jurisdiction to grant the relief
claimed. It was also observed that mere filing of an application under
Section 10 CPC does not in any manner put an embargo on the power
of the Court to examine the merit of the matter and that the object of
Section 10 is only to prevent the courts of concurrent jurisdiction from
simultaneously trying two parallel suits in respect of the same matter
in issue. However, it was also observed that it was not for a litigant to
dictate to the court how the proceedings should be conducted, it is for
the court to decide what will be the best course to be adopted for
expeditious disposal of the case.
6. It is undisputed that the said suit 698/2006 was dismissed being
barred by limitation. However, admittedly an appeal against that order
and judgment has already been filed by the plaintiff (respondent no.5
herein). It is also undisputed that the petitioner was not a party in that
suit. May be that he was claiming through respondent no.2, but the
fact remains that he was not impleaded in the said suit. Further all the
five suits related to different portions of lands and different sale deeds.
Though, the sale deeds purported to be executed on the same day, but
different sale deeds in respect of different portions of land would have
different cause of actions. The aforesaid suit was not decided on
merits, but only on the point of limitation and thus it could not be said
that the matter in issue in the said case was directly and substantially
in issue in these suits. It was rightly observed by the Civil Judge that
the suit being 698/2006 was not prior in time and thus it could not be
said to be within the ambit of previously instituted of Section 10 CPC.
The decision which was rendered in that suit being the subject matter
of appeal is subjudice and thus also could not be said that the matter
has been finally decided against the plaintiff.
7. In view of my discussion as above, I do not see any point of
applicability of Section 10 CPC or Order 7 rule 11 CPC warranting
stay of these suits or rejection of the plaints. It is reiterated that all the
four cases have separate and independent causes of actions and the
petitioner not being a party in the earlier suit, had no locus standi to
seek stay of the suits filed by respondent No.5. I do not see any
infirmity or illegality in the impugned order.
8. Petitions have no merit and are dismissed.
M.L. MEHTA, J.
DECEMBER 03, 2012
pkv
