Sh. Virender Pal Singh, Sh. Ghanshyam and Sh. Vijay Pal Singh vs Uma Dutt

Dev Darshan, J.—This is the plaintiffs'' appeal against the judgment and decree of the learned District Judge setting aside the judgment and decree of the learned trial Court granting a decree of injunction against the defendant in that suit. Civil suit RBT No. 69/1 of 2007 was instituted by S/Sh. Virender Pal Singh, Ghanshayam and Vijay Pal against Uma Dutt with respect to the property as detailed in that suit. On the pleadings of the parties, the learned trial Court settled six issues and decreed the suit of the plaintiffs. Issue No. 4 was crucial to decide the entire controversy between the parties whether the suit was required to be stayed u/s 10 of the CPC (hereinafter referred to as CPC), on the pleadings of the defendant that a previously instituted suit between the same parties or representatives of the same parties with respect to the same property was pending which was registered as Civil Suit No. 7/1 of 2003, titled as Uma Dutt versus Virender and others. This issue was taken up for discussion/decision by the learned trial Court under settled issue No. 4 holding that :

Since the suit filed before the Court No. 4 in civil suit No. 7-1 of 2003 has been dismissed in default, objection of the defendant for stay of the suit is not sustainable as of today no previous suit is pending between the parties about the same subject matter and accordingly, issue No. 4 is decided against the defendant and answered in negative.

Learned counsel appearing for the respondent contended that this was factually incorrect as the suit was restored and that the learned trial Court did not take notice of this fact. Be that as it may, but in the changed circumstances that would loose significance for the reasons that the suit was in fact restored and was dismissed on merits by the learned trial Court by its judgment dated 31.5.2011. This fact is not disputed by the parties. It is also admitted that appeal against this judgment and decree is pending before the learned Addl. District Judge, Fast Track Court, Shimla being civil appeal No. 64-S/13 of 2011 titled Uma Dutt versus Viredner and others which is fixed for 20th March, 2012. In these circumstances, without entering into the submission made by learned counsel appearing for the parties, it would be in the fitness of things if the judgment and decree of the learned District Judge is set aside with a direction that the appeal out of which the present proceedings arises as also the civil appeal No. 64-S/13 of 2011, titled Uma Dutt versus Virender and others be consolidated and tried together. This appeal is disposed of accordingly. All miscellaneous applications also stands disposed of.