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2009 DIGILAW 888 (PNJ)

Gindori v. Smt. Kitabo

2009-05-07

S.D.ANAND

body2009
Judgment S.D.Anand, J. 1. The plaintiff-petitioner is in revision against order dated 17.11.2007 vide which the learned Trial Court, while allowing a plea under Section 10 read with Section 151 C.P.C. in favour of defendants - respondents, ordered the stay of the proceedings of the suit. 2. There is no controversy between the parties insofar as the following factual aspect is concerned. 3. Mst. Gindori (hereinafter referred to as "the plaintiffpetitioner") filed a civil suit (No.497 of 1993) against her father Kirpa. That suit was decreed, vide judgment and decree dated 27.7.1993. It was a collusive suit. Two mutations No. 1888 and 677 (pertaining to the land of two villages) on the basis thereof were sanctioned on 17.9.1993. The father of defendants- respondents challenged the validity of the decree dated 27.7.1993 ( in Civil Suit No. 497 of 1993) by filing a civil suit (no.1010 of 1993). That suit was decreed and the decree dated 27.7.1993 was ordered tobe set aside. The plaintiffpetitioner filed an appeal in the District Court which came to be allowed on 24.10.2002. A Regular Second Appeal (No. 1283 of 2003) against the judgment and decree dated 24.10.2002 was filed by the defendants - respondents in their capacity as Legal representatives of their father who died in the meantime. That RSA has been admitted to a hearing. Subsequently, the respondentslegal representatives made a presentation to the revenue authorities that a civil suit (No. 565 of 1998) filed by them against the plaintiffpetitioner herein (qua the property in suit) had been decreed by the Court of Ms. Manisha Batra, Civil Judge (Junior Division), Bahadurgarh, vide judgment and decree dated 4.8.1998. On that presentation, the respondents - legal representatives were able to get a mutation in respect of this very land sanctioned. The plaintiffpetitioner filed a civil suit (No.127 dated 4.6.2003) to obtain the invalidation of the judgment and decree dated 4.8.1998 passed in Civil Suit No.565 of 1998 on an averment that "no such civil suit bearing suit No.565 titled as Smt.Kitabo and others v. Smt.Gindori regarding suit land was ever filed in the Court of Ms. Manisha Batra, Sub Judge Bahadurgarh nor the Hon ble Court of Ms. Manisha Batra, ever passed any decree dated 4.8.1998 in civil suit No.565 regarding the suit land." 4. Manisha Batra, Sub Judge Bahadurgarh nor the Hon ble Court of Ms. Manisha Batra, ever passed any decree dated 4.8.1998 in civil suit No.565 regarding the suit land." 4. The respondents filed a plea therein under Section 10, read with Section 151 C.P.C., for the stay of the proceedings in that suit. The averment, made in support thereof, was that the subject of controversy is the same which is in issue in RSA No.1283 of 2003. The plea found favour with the learned Trial Court which observed that " the matter in dispute in the present suit and in RSA No. 1283 of 2003 is directly and substantially same. Parties in both, cause of action and subject matter is same. The order passed in RSA would obviously operate as resjudicata for the purposes of present suit". 5. The plaintiff - petitioner has filed this petition to obtain invalidation of the view aforementioned. 6. Learned counsel, appearing on behalf of the plaintiffpetitioner, argued that the present suit has been filed only to obtain an order about invalidation of the judgment and decree dated 4.8.1998 passed in Civil Suit No.565 of 1998 on the essential premise that no such suit ever came to be filed or decreed by the Civil Court. In support of the advocated view, the learned counsel for the petitioner draw sustenance from the affidavit/examination - in - chief of Sh.Rajesh Kumar, Civil Ahlmad who made a record - based statement to the effect that the civil suit register pertaining to the year 1998 does not contain an entry about the institution/disposal of any civil suit bearing No. 565 of the year 1998. He also made deposition to the effect that cases entered at serial no.1 to 370 only were instituted in the concerned Court during the year 1998. This witness further informed the Court that the disposal register had been deposited in the record room. In order to buttress that plea Shri Ramesh Bhardwaj, Record Keeper, in the form of an affidavit-based examination-in-chief, testified on the basis of Goshwara register for the year 1998 that Civil suit No.565 of the year 1998 titled Smt. Kitabo v. Gindori does not stand entered in the Bastas pertaining to village Dariyapur and Lohat. He also testified, on the basis of the disposal register, entries pertaining to the Court of Ms. He also testified, on the basis of the disposal register, entries pertaining to the Court of Ms. Manisha Batra, Civil Judge (Junior Division), Bahadurgarh, that no such case is entered in the disposal register either. 7. Though there can, obviously, be no dispute about the factual averment that the parties to the previous litigation (qua which RSA No. 1283 of 2003 is presently pending) and the present litigation are the same and so also is the property in question, there can be no escape from the conclusion either that in the present case the challenge is to the very existence of the decree dated 4.8.1998 in civil suit no.565 of 1998. The plaintiff - petitioner has made an averment in the present suit that decree dated 4.8.1998 in civil suit never ever came to be passed by the purported Court of Ms. Manisha Batra, Civil Judge (Junior Division), Bahadurgarh. Whether plaintiff-petitioner ultimately succeeds at the trial or not is an altogether different phenomenon. Qua the commonness of the parties and the cause in the previous suit, there is no controversy. It is the respondents who approached the revenue authorities and got mutation sanctioned in their favour(qua the land in suit) on the basis of civil court decree dated 4.8.1998 purported to have been passed by Court of Ms. Manisha Batra, Civil Judge (Junior Division), Bahadurgarh in Civil suit no.565 of 1998. There can, thus, be no escape from the conclusion that the fact of commonness of parties between the previous litigation and the present litigation notwithstanding, the nature of controversy in the present suit is altogether different. While the previous litigation pertains to the validity or otherwise of the collusive decree dated 27.7,1993, the present cause calls into question the very existence of the decree dated 4.8.1998. 8. In the light of foregoing discussion, the petition shall stand allowed. The impugned order dated 17.11.2007 shall stand set aside. The learned Trial Court shall proceed further in the matter in accordance with law.