Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 511 (RAJ)

Ramotar v. Sikar

2005-02-16

K.S.RATHORE

body2005
Judgment K.S Rathore, J.-This writ petition is directed against the order dated 28.09.2004 passed by the Additional District Judge (Fast Track), Sikar. By the aforesaid impugned order the application moved on behalf of the defendant petitioners under Section 10 CPC was rejected. 2. The main grievance of the petitioners is that the petitioners are defendant in suit No. 90/2004 whereas respondent Nos. 2, 3 and 4 are plaintiff . The ex-parte decree was passed on 13.09.1985 to the effect that the plaintiffs are in continuous possession over the disputed property and he has acquired right on the basis of adverse possession and to protect possession, a decree for permanent injunction was also granted. The plaintiff respondents have moved an application under Order 9 Rule 13 CPC for setting aside the ex-parte decree. He also simultaneously preferred a first regular appeal before the appellate Court. Both the proceedings i.e. application for setting aside the ex-parte decree and the appeal are pending before the Distt. Judge, Sikar. 3. Learned Counsel for the petitioners also submits that the suit filed by the plaintiff respondents is not maintainable as the relief does not come with the ambit of Section 9 of CPC. It is further submitted that in relation to the same relief remedy provided under Order 9 Rule 13 has already been sought by moving an application and has also been preferred the first appeal and the Judgment of first appeal or order passed under Order 9 Rule 13 CPC is having material bearing so far as the rights of respondent Nos. 2 to 4 are concerned, in that event, the civil suit is not maintainable before the trial Court. Therefore, the petitioners moved application under Section 10 CPC wherein it was categorically mentioned that proceedings of the suit may be stayed in view of pendency of civil regular appeal No. 62/2003 and the same was preferred prior to institution of the present suit. 4. Learned Counsel for the petitioners submits that by giving erroneous finding the Court below has passed the impugned order dated 28.09.2004, which is not only in contravention of the provisions of Section 9 and 10 of CPC but also contrary to the facts and the circumstances of the case. 5. In support of his submissions learned Counsel for the petitioners Mr. 5. In support of his submissions learned Counsel for the petitioners Mr. Mathur placed reliance on the Judgment s reported in 2004 (8) JT SC 581, A.C. Ananthaswamy & Ors. vs. Boraiah (d) by LRS, 2002 SAR (Civil) 346 SC, Vasant Ganesh Damle vs. Shrikant Trimbak Datar & Anr., 2000 (3) SCC 607 , Dilip vs. Mohd. Azizul Haq & Anr. and AIR 1978 Delhi 221 C.L. Tandon, G.T.A. vs. Prem Pal Singh Rawat & Ors. 6. Learned Counsel for the petitioners also referred provisions of Section 10 and Order 9 Rule 13 of CPC. 7. He placed reliance on the Judgment of A.C. Ananthaswamy & Ors. vs. Boraiah (d) by Lrs. (Supra) wherein the Honble Supreme Court has held that to prove fraud, it must be proved that representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. Herein the instant case it was alleged by the respondents plaintiff that the notices were not properly served upon them and the ex parte decree is fraudulently obtained. Mr. Mathur also placed reliance on the case of Dilip vs. Mohd. Azizul Haq & Ors. (Supra) wherein the Court has held that once a decree passed by a Court has been appealed against the matter becomes sub-judice again and thereafter the appellate Court acquires seisin of the whole case. A Court of appeal shall have the same powers and shall perform as nearly as may be the same duties as conferred and imposed on Courts of original jurisdiction. The hearing of an appeal under the processual law of the country being in the nature of a rehearing and it is on the theory of an appeal being in the nature of a rehearing that the Courts in this country have, in numerous cases, recognised that in moulding the relief to be granted in a case on appeal, the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against. As an appeal is a rehearing, it must follow that if an appellate Court dismisses an appeal it would be passing a decree affirming eviction and thereby passes a decree of its own, and in the event it upsets the decree of the trial Court, it would be again passing a decree of its own resulting in merger of decree of the trial Court with that of the appellate Court. The legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and one to be regarded as one legal proceeding. Pendency of the appeal is nothing but in continuation and rehearing of the suit. On this point the petitioners placed reliance on the aforesaid case. Similar view has been taken by the Honble Supreme Court in the case of Vasant Ganesh Damle vs. Shrikant Trimbak Datar & Anr. (Supra) that the appeal is continuation of suit because under Section 107 of the Code, the appellate Court has the same powers as are conferred by the Code on Courts of original jurisdiction in respect of suits instituted therein. With regard to the finding given by the trial Court that without examining this fact that substantially the matter and the issue is same has rejected the application filed on behalf of the petitioners defendant under Section 10. It is held by Delhi High Court in the case of C.L. Tandon, G.S. vs. Prem Pal Singh Rawat & Ors. (Supra) that matter in issue must substantially be same-Whether matters in issue are directly and substantially same-Test to determine. It is not the requirement of the law that the matters the issues involved in the two suits should be totally identical, but they must be substantially the same. After placing reliance on the aforesaid Judgment s and the provisions of law he submits that the trial Court has seriously erred in not allowing the application under Section 10 CPC. 8. Per contra learned Counsel for the respondents Mr. Mahendra Shah has controverted these facts and first and foremost submissions made on behalf of the respondents are that the prayer claimed are not identical and the nature of the suit is not substantially same as required under Section 10. 8. Per contra learned Counsel for the respondents Mr. Mahendra Shah has controverted these facts and first and foremost submissions made on behalf of the respondents are that the prayer claimed are not identical and the nature of the suit is not substantially same as required under Section 10. In reply to the writ petition he has reproduced the prayer of both the suit filed by the petitioner and by the respondents. By reproducing the same he demonstrated before this Court that the relief claimed in both the suits are not identical and the matter is also not same, therefore, the finding given by the trial Court is absolutely correct. He also submits that the petitioners want to delay the proceedings and therefore this application is moved before the trial Court. 9. Having heard rival submissions of the respective parties and upon careful perusal of the relevant provisions of CPC and the Judgment s referred by the learned Counsel for the petitioners as well as the order impugned, it reveals that the trial Court while considering the application under Section 10 has observed that the suit is under progress and the evidences of the plaintiff is not completed and it is fixed for evidence of petitioners plaintiff . Despite of several opportunities they have not produced evidences and to delay the matter he has moved this application. Further while dealing with Section 10 in the application the trial Court has test the present case in view of the provisions of Section 10. It was found that the parties are not same and the subject matter of the suits are also not same. The substantial issue is not same. Therefore, the application under Section 10 has been rejected. In the light of ratio decided by the Honble Supreme Court it is no doubt that settled proposition of law as held by Honble Supreme Court that the application under Section 10 can only be allowed when the application is found correct on the basis of test laid down under Section 10. This is not disputed that in case the substantial issue is same and the parties are same, the application ought to have been allowed. 10. This is not disputed that in case the substantial issue is same and the parties are same, the application ought to have been allowed. 10. Applying the ratio decided by Honble Supreme Court in the instant case and applying the test laid down under Section 10 of CPC it reveals that neither the parties are same nor substantial issue is same, therefore, I find no fault in the Judgment rendered by the trial Court dated 28.09.2004 by which the trial Court has rejected the application under Section 10. 11. No interference whatsoever is called for, therefore, the writ petition fails and is herewith dismissed. Consequently, the ex parte interim order granted by this Court on 012.2004 also stands vacated and the application under Article 226(3) also stands disposed of .