Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 1061 (PNJ)

Surinder Mohan v. Baldev Singh

2013-08-14

PARAMJEET SINGH

body2013
JUDGMENT Mr. Paramjeet Singh, J.:- Both the above mentioned Civil Revisions viz. CR No. 1957 of 2003 and CR No. 3499 of 2004 have been listed together for hearing. Both the above mentioned Civil Revisions are being disposed of by a common judgment. 2. C.R. No. 1957 of 2003 has been filed for setting aside the judgment dated 29.03.2003 passed by learned Civil Judge (Junior Division), Chandigarh whereby application filed by the petitioner for treating Issue No.3 of res judicata as preliminary issue, has been declined. 3. In C.R. No. 3499 of 2004, the petitioner has prayed that in the exercise of plenary and extra ordinary jurisdiction vested in this Court, the civil suit titled Baldev Singh vs. Surinder Mohan and others be dismissed as identical issue has earlier been decided between the parties in a civil suit and that suit has become final upto the Hon’ble Supreme Court. 4. Brief facts of the case are that respondent no.1 – Baldev Singh filed a civil suit in which the petitioner was arrayed as defendant. On 21.11.2001, the following issues were framed in the said suit:- “1. Whether the plaintiff is entitled to declaration as prayed for? OPP 2. Whether the plaintiff is entitled to Permanent Injunction as prayed for? OPP 3. Whether the suit is barred by principles of res judicata? OPD 4. Whether this court has no territorial jurisdiction to entertain and try the present suit? OPD 5. Whether the suit is bad for mis-joinder of the parties and the non-joinder of necessary parties? 6. Whether the plaintiff has filed this suit with mala fide intentions? OPD 7. Relief.” 5. After framing of issues, the petitioner moved an application on 11.12.2001 under Order 14 Rule 2 read with Section 151 CPC for treating issue no.3 i.e. whether the suit is barred by principles of res judicata? OPD, as preliminary issue. Vide order dated 29.03.2003, the trial Court dismissed the application. Hence, this revision petition. 6. Civil Revision No. 3499 of 2004 regarding this very suit is for dismissing the suit exercising the extra ordinary jurisdiction by this Court. 7. I have heard learned counsel for the parties. 8. Learned counsel for the petitioner vehemently contended that application for treating issue no.3 of res judicata as preliminary issue has been wrongly declined by the trial Court, which is not sustainable in the eyes of law. 7. I have heard learned counsel for the parties. 8. Learned counsel for the petitioner vehemently contended that application for treating issue no.3 of res judicata as preliminary issue has been wrongly declined by the trial Court, which is not sustainable in the eyes of law. Respondent no.1 – Baldev Singh is a chronic litigant and he has been held so in C.R. No. 6225 of 2002, decided on 16.04.2009 by this Court. Learned counsel for the petitioner further submitted that some of the revision petitions against Baldev Singh etc. have already been allowed by this Court. As such, this suit is also required to be dismissed or in the alternative the issue of res judicata be ordered to be treated and decided as a preliminary issue. 9. Learned counsel for the respondents vehemently opposed the contentions raised by the learned counsel for the petitioner and contended that issue of res judicata cannot be treated as a preliminary issue. 10. I have considered the rival contentions of the learned counsel for the parties and perused the record. 11. From the perusal of the record and the judgment in the earlier litigation between the parties, it is clear that earlier litigation was between Baldev Singh, Surinder Mohan and Ajay Kumar. In the present litigation in addition to Surinder Mohan and Ajay Kumar, Baldev Singh has also impleaded Balkishan, V.Kumar and Smt. Geeta Sharma as defendants. Although the reading of the pleadings and the judgment of the lower appellate Court dated 09.09.2002 (Annexure P/5 in CR No. 1957 of 2003) shows that in substance the contents of the plaint are identical, however, this issue was not treated as preliminary issue. It would be appropriate to mention that Baldev Singh – respondent no.1 vide CR No. 6225 of 2002, decided on 16.04.2009, has been declared to be vexatious litigant. The relevant para of the said judgment reads as under:- “19. The Law Commission has made its recommendation. The Hon’ble Supreme Court has delivered its verdict. Let us wait for the day when the legislature acts. Till then the disposition of this case shall be:- The suits, which have been filed by the respondents and which are sought to be struck off through the civil revisions, have therefore, to be dismissed and civil revisions have to succeed. The Hon’ble Supreme Court has delivered its verdict. Let us wait for the day when the legislature acts. Till then the disposition of this case shall be:- The suits, which have been filed by the respondents and which are sought to be struck off through the civil revisions, have therefore, to be dismissed and civil revisions have to succeed. Plaintiff in both the suits namely Pritam Kaur and Baldev Singh at whose instance, the suits have been filed shall be burdened with costs of Rs.3,000/- each. The name of Pritam Kaur and Baldev Singh being the widow and son respectively of Late Mohan Singh shall be notified as vexatious litigants in the notice boards for public viewing and no suit in relation to the property in dispute shall be entertained by any Courts, without the leave of this Court.” 12. The said judgment has been ordered to be circulated to the jurisdictional civil courts. 13. The Hon’ble Supreme Court in Abdul Rahman vs. Prasony Bai and others, AIR 2003, Supreme Court, 718 has held as under:- “21. For the purpose of disposal of the suit on the admitted facts, particularly when the suit can be disposed of on preliminary issues, no particular procedure was required to be followed by the High Court. In terms of Order XIV Rule 1 of the Code of Civil Procedure, a Civil Court can dispose of a suit on preliminary issues. It is neither in doubt nor in dispute that the issues of res judicata and/constructive res judicata as also the maintainability of the suit can be adjudicated upon as preliminary issues. Such issues, in fact, when facts are admitted, ordinarily should be decided as preliminary issues.” 14. In view of the law laid down by the Hon’ble Supreme Court and prima facie perusal of the facts brought before this Court by way of plaint (Annexure P/1), written statement (Annexure P/2), proposed issues (Annexure P/3) and the earlier judgments and the fact that once the facts are admitted by the parties and no evidence is required to be led, then the civil Court can decide the crucial issue of res judicata and maintainability as preliminary issue. Otherwise also, the civil Court has discretion to decide the issue of res judicata with other issues. 15. In the case of Sajjadanshin Sayed Md. Otherwise also, the civil Court has discretion to decide the issue of res judicata with other issues. 15. In the case of Sajjadanshin Sayed Md. B.E. EDR (D) by LRs vs. Musa Dadabhai Ummer, AIR 2000 SC 1238 , the Hon’ble Supreme Court while considering the issue for the purposes of determination of resjudicata, has held that it is necessary to examine not only the judgment, but also the plaint, the written statement to determine if the matter was directly and substantially in issue in the previous suit. 16. In the light of the above, this Court is of the opinion that the trial Court after considering the matter has rightly come to the conclusion that the issue of res judicata cannot be disposed of as a preliminary issue. It has to be examined thoroughly on the basis of evidence on record being fact that question of res judicata is a question of law and fact and is not a pure question of law. Only issue of law does not require any evidence to prove and it can be treated as a preliminary issue and that too when suit can be disposed of on its decision. Consequently, revision petition viz. CR No. 1957 of 2003 is dismissed. However, in the facts and circumstances of the case specifically that both the aforesaid revision petitions are pending since April 2003 and July 2004 and since it is a burnt case and the counsel for the parties did not point out any stay of proceedings by this Court, it is believed that the suit must have reached maturity or may have been decided by now. If the suit has not been finally decided, then the Court below shall decide the suit finally after affording adequate opportunities to the parties preferably within a period of six months from the date of receipt of certified copy of this order. 17. So far as the other Civil Revision i.e. C.R. No. 3499 of 2004 is concerned, since the direction has already been issued in CR No. 1957 of 2003, this Court does not deem it appropriate to exercise plenary and extra ordinary jurisdiction to dismiss the suit. 18. In view of the above, both the aforementioned Civil Revisions are dismissed.