Kewal Krishan and Others vs Jarnail Singh and Others

A.L. Bahri, J.—This revision petition is directed against order dated November 26, 1990, passed by Sub Judge 3rd Class Karnal, allowing application filed u/s 28-A of the Punjab Pre-emption Act and staying proceedings in the civil suit No. 520 of 1990 regarding four Kanals of land, earlier filed.

Two suits for pre-emption were filed relating to different parcels of land sold to the same vendee by the same pre-emptor. Civil suit No. 520 of 1990 relates to 4 kanals of land which was sold on May 11, 1990 Civil Suit No. 521 of 1990 relates to 66 Kanals of land sold on May 18, 1990. The suits for pre-emption have been filed by the Plaintiffs claiming to be co-sharers in the joint khata. It was in the latter suit that application u/s 28-A of the Pre-emption Act was filed by the Defendants for staying the proceedings in the earlier instituted suit.

28-A. Postponement of decision of pre-emption suit in certain cases.--(I) If, in any suit for pre-emption, any person bases a claim or plea on a right of pre-emption derived from the ownership of agricultural land or other immovable property, and the title to such land or property is liable to be defeated by the enforcement of a right of pre-emption with respect to it, the court shall not decide the claim or plea until the period of limitation for the enforcement of such right of pre-emption has expired and the suits for pre-emption, if any, instituted with respect to the land or property during the period have been finally decided.

If the ownership of agricultural land or other immovable property is lost by the enforcement of a right of preemption, the court shall disallow the claim or plea based upon the right of pre-emption derived therefrom.

The close scrutiny of the aforesaid provision would reveal that an application under this provision is contemplated to be filed by the Plaintiff whose claim is based on a right of pre-emption derived from the ownership of land. If such a right was defeated in another suit, the proceedings in the earlier instituted suit could be stayed if the decision was to be dependent on decision of such a suit. The trial Court relied upon the decision of this Court in Indraj v. Ami Lal and Ors. 1988 P.J.J. 268. wherein proceedings were stayed on the application filed by the Plaintiff. After noticing the aforesaid decision the trial Court observed that even if Defendant had filed such an application, the ratio of the decision could be followed. This approach is not correct. As already stated above, Section 28-A of the Act only contemplates an application to be filed by the Plaintiff on fulfillment of certain requirements relating to his claim; to the right of pre-emption. The same analogy cannot be applied to the plea of the Defendant that on one or the other ground being common the Plaintiffs'' earlier instituted suit should be stayed.

Finally learned Counsel for the Respondent has relied upon Section 10 of the CPC that even if the provision of Section 28-A of the Pre-emption Act were not applicable the power to stay the proceedings existed in the Court u/s 10 of the CPC as one of the points arising in both the suits is common though the subject matter is different. The aforesaid common question is stated to be relating to the right of the Plaintiffs to claim pre-emption being co-sharers. It is further argued that issue in both the suits would be as to whether the Plaintiffs are co-sharers in the joint Khata or not. Since one of the issues would be common, one of the suits could be stayed. I cm afraid, again this contention cannot be accepted. Section 10 of the CPC is attracted when matter in issue in-directly or substantially in the two suits is the same. One of the issues cannot be treated as matter in issue. In Shri Mohan Lal Thapar v. Messrs Sard Ispat Udyoq Chhehrata 1973 P.L.R. 443, the question was about the applicability of Section 10 of the CPC in two suits for recovery of rent for different period between the same parties. It was held that subsequent sat filed for recovery of rent for the different period was not liable to be stayed u/s 10 of the Code of Civil Procedure, as the matter in issue would not be the same.

For the reasons recorded above, this revision petition is accepted. The impugned order is sec aside. However there will be no order as to costs. Parties through their counsel are directed to appear in the trial Court on March 25, 1991. No order in C.M. is necessary stand disposed of.