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2012 DIGILAW 3221 (DEL)

Bhagwan Singh v. S. K. Jha

2012-12-13

M.L.MEHTA

body2012
JUDGMENT : M.L. Mehta, J. These four petitions under Article 227 of the Constitution of India are directed against the order dated 01.10.2012 of Civil Judge - 02 (North) whereby these four applications U/s 10 read with Order 7 Rule 11 Civil Procedure Code were dismissed. 2. The respondent No.5 herein namely Bhagwan Singh son of Raj Karan had field five suits against respondent Nos. 1 to 4, for cancellation of five sale deeds dated 06.12.2011 and for declaration and permanent injunction. One of the suits bearing No. 698/2006 was proceeded ex-parte against the defendants, but ultimately was dismissed vide judgment dated 12.01.2011. In the remaining four suits, the eptitioenr herein filed an applications U/s 10 read with Order 7 Rule 11 Civil Procedure Code seeking stay of these four suits on the ground that the issue arising in these suits has already been decided by the court in the suit No. 698/2006 whereby the said suit has been dismissed on the ground of being barred by limitation. The civil judge dismissed all the four applications observing that all the five suits were filed together on one day and so could not be said that suit No. 698/2006 was instituted prior in time. She also observed that appeal against the judgment of 12.01.2011 had been preferred by the plaintiff therein in the appellate court and so it could not be said that the issue is finally decided. 3. The instant petitions have been filed assailing the impugned order. The submission which have been made before me by the learned counsel for the petitioner are same what were made before the Civil Judge that the finding in the earlier suit recorded in judgment dated 12.01.2011 would operate as res judicata in these suits and thus all these suits are liable to be stayed or to be rejected for want of cause of action and also being barred by limitation. Here also the reliance is placed on the same judgment titled Pukhraj D. Jain and others v. G. Gopalakrishna, AIR 2004 SC 3504 : 2004 (2) Civil Court Cases 630 (S.C) : 2004 (1) Apex Court Judgments 612 (S.C.) : AIR 2004 SC 3504 . 4. Having heard the learned counsel for the petitioner, I do not see the applicability of the provisions of Section 10 or Order 7 Rule 11 Civil Procedure Code. 4. Having heard the learned counsel for the petitioner, I do not see the applicability of the provisions of Section 10 or Order 7 Rule 11 Civil Procedure Code. The aforesaid five suits were filed by respondent No.5 against the four defendants (respondent Nos. 1 to 4 herein) seeking cancellation of five separate sale deeds in respect of different portions of the premises. 5. In the case of Pukhraj D. Jain (Supra) the principles of Section 10 of Civil Procedure Code were reiterated that no court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim litigating under the same title, where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed. It was also observed that mere filing of an application under Section 10 Civil Procedure Code does not in any manner put an embargo on the power of the Court to examine the merit of the matter and that the object of Section 10 is only to prevent the courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. However, it was also observed that it was not for a litigant to dictate to the court how the proceedings should be conducted, it is for the court to decide what will be the best course to be adopted for expeditious disposal of the case. 6. It is undisputed that the said suit 698/2006 was dismissed being barred by limitation. However, admittedly an appeal against that order and judgment has already been filed by the plaintiff (respondent no.5 herein). It is also undisputed that the petitioner was not a party in that suit. May be that he was claiming through respondent no.2, but the fact remains that he was not impleaded in the said suit. Further all the five suits related to different portions of lands and different sale deeds. Though, the sale deeds purported to be executed on the same day, but different sale deeds in respect of different portions of land would have different cause of actions. Further all the five suits related to different portions of lands and different sale deeds. Though, the sale deeds purported to be executed on the same day, but different sale deeds in respect of different portions of land would have different cause of actions. The aforesaid suit was not decided on merits, but only on the point of limitation and thus it could not be said that the matter in issue in the said case was directly and substantially in issue in these suits. It was rightly observed by the Civil Judge that the suit being 698/2006 was not prior in time and thus it could not be said to be within the ambit of previously instituted of Section 10 Civil Procedure Code. The decision which was rendered in that suit being the subject matter of appeal is subjudice and thus also could not be said that the matter has been finally decided against the plaintiff. 7. In view of my discussion as above, I do not see any point of applicability of Section 10 Civil Procedure Code or Order 7 Rule 11 Civil Procedure Code warranting stay of these suits or rejection of the plaints. It is reiterated that all the four cases have separate and independent causes of actions and the petitioner not being a party in the earlier suit, had no locus standi to seek stay of the suits filed by respondent No.5. I do not see any infirmity or illegality in the impugned order. 8. Petitions have no merit and are dismissed. Petition dismissed.