Baljinder Kaur and Others vs Dalal Kaur

Bakhshish Kaur, J.—This order shall dispose of Civil Revision Nos. 4305 and 4311 of 2000 as (he question of facts and law involved in both the cases is the same.

These revision petitions are directed against the order passed by the learned Civil Judge (Junior Division), Rajpura, whereby application u/s 10 of the CPC was dismissed.

Dayal Kaur plaintiff, the divorced wife of Singh Ram brought a suit for declaration that she is owner of 64 Bighas 5 1/2 Biswas being 1/2 share and Singh Ram-proforma defendant No. 2 is owner of remaining 1/2 share of agricultural land measuring 128 Bighas 11 Biswas as per Jamabandi for the ear 1990-91. She has also challenged the judgment and decree dated 7.6.1980, passed by the Sub Judge, IInd Class, Rajpura in Civil Suit No. 217 of 1980, decided on 7.6.1980, being illegal, null and void, as the decree is not registered, therefore, it is not binding on her rights. As a consequential relief she has sought possession of the land by way of partition,

I have heard Mr. R.M. Singh, Advocate, for the petitioner and Mr. R.K. Battas, Advocate, for the respondents.

Mr. R.M. Singh, learned counsel for the petitioner, contended that the proceedings in the suit may be stayed in view of the compromise effected between the parties in an earlier suit filed by Shamsher Singh and others against Singh Ram and others. An application for withdrawal of the suit though filed but it was dismissed. In appeal, judgment and decree of the trial Court was reversed and the case was remanded to the trial Court. The said order has also been challenged by way of filing regular second appeal in this Court wherein the parties have been directed to maintain status quo, therefore, the subject matter of litigation being the same, the proceedings in the suit are liable to be stayed.

Mr. R.M. Singh, learned counsel for the petitioner contended that Shamsher Singh and Ajaib Singh had filed a suit on 25.3.1995 against Singh Ram, Karam Singh and Baljinder Kaur, widow of Rajinder Singh, now petitioner for permanent injunction in respect of 128 Bighas 11 Biswas of land, in which plaintiff No. 1 is the real brother of defendant Singh Ram. Singh Ram was adopted by Smt. Indo, previous owner of the suit land. A gift deed was executed in favour of defendants No. 1 and 2 before 1955 and possession was also delivered to them. The plaintiff No. 1 had no money to spend on the marriages of his children, therefore, in order to raise social status of plaintiffs family, suit land was given without consideration, entries in the revenue record were recorded but possession was not delivered to them. In this way, defendants No. 1 and 2 suffered collusive decree by an erroneous admission that the possession of the plaintiff is adverse. In fact, Shamsher Singh and his son Kirpal Singh were not in possession of the suit land.

The salient feature of Section 10 of the CPC is that the substratum of the dispute has to be seen. Though this section requires that the matter in issue in the two suits should be directly and substantially the same and there must be an identity of the subject matter, but the parties should also be the same. In the given case in hand, the plaintiff was not a party to the previously instituted suit. The subject matter in dispute is certainly different from the subject matter of the previously instituted suit. The plaintiff is challenging the judgment and decree dated 7.6.1980 passed by the Sub Judge, IInd Class, Rajpura in Civil Suit No. 217 of 1980, decided on 7.6.1980, titled Shamsher Singh and Ors. v. Singh Ram and Ors., Though, it is contended that the suit was decided within few days of its filing and it shows a clever design on the part of the parties to that suit but the fact remains that the judgment and decree passed in the suit is being challenged by the plaintiff. Thus, no case is made out of staying the proceedings.

On the contrary, Mr. Batta, learned counsel for the respondents has placed reliance on Jagan Nath Jagdish Lal v. Piara Mal Gobind Ram Sachdev 1979 P.L.J. 231 Kewal Krishan v. Jar nail Stngh. 1991 P.L.J. 271 and Canara Bank v. Scanomax India Limited 2000(1) R.C.R. 242.

It is, well settled that merely because one or two issues may be identical will not be a ground to stay the subsequently instituted suit as it would be contrary to the provisions envisaged u/s 10 of the Code.

In M/s Jagan Nath Jagdish Lal''s case (supra), it has been observed that apart from preventing the multiplicity of the proceedings the other principal object of Section 10 of the Code is the prevention of contradictory decrees by Courts of concurrent jurisdiction. This object would also be defeated if the present suit is not stayed. Similar view has been taken by this Court in M/s. O.P. Steel Traders Vs. M/s. Steel Strips Ltd., and Jaswant Singh and Ors. v. Surjant Singh, 1984 Current Law Journal 679.

Civil Suit No. 808 of 25.3.1995 was filed by Shamsher Singh and Ajaib Singh against Singh Ram and other for restraining Singh Ram and others from interfering in their peaceful possession or dispossessing them by cutting and removing the standing wheat crop, whereas in the present suit the plaintiff has challenged the judgment and decree dated 7.6.1980. A comparison of the pleadings of the suit, re: Dayal Kaur v. Shamsher Singh and Ors. and Civil Suit No. 808 of 1995, re: Shamsher Singh and Anr. v. Singh Ram and Ors. would also make it clear that the subject matter of both the suits is distinct and for the purpose of bringing the case within the ambit of Section 10 of the Code, it is necessary that the matter in dispute shall be directly and substantially same in both the suits.

Thus, no case is made out to stay the proceedings and the trial Court has rightly exercised the discretion in dismissing the application u/s 10 of the Code.

Consequently, both the revision petitions are dismissed with no order as to costs.