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2016 DIGILAW 365 (HP)

Surrinder Nath v. Jaggi Ram Sharma

2016-03-31

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. 1. Defendant Jaggi Ram in the main suit has filed this application for taking issues No. 4 and 5, (wrongly mentioned as Issue No. 1 & 4) as preliminary and to dispose of the same first. 2. The suit has been filed by Smt. Savitri Devi (since dead) through her General Power of Attorney Shri Surender Nath now plaintiff in the suit for declaration to the effect that the sale deed dated 2.1.2007, qua 1/5th share in the land comprised in Khata/Khatauni No. 29 min/44 min, Khasra No. 151/31/1, 75, 232/166/70, 234/74, 235/74, 204/135/1, 205/131/1/3 and 205/135/ 1/1 in the total land measuring 20-12 bighas in favour of defendant Jaggi Ram is illegal, null and void, being the result of fraud practiced upon her. Deceased plaintiff Savitri Devi has expired during the pendency of the suit and her son Surinder Nath was allowed to be substituted in her place as plaintiff as per order dated 21.6.2010 passed in OMP (M) No. 8 of 2010. 3. This application has been filed on the grounds inter alia that in Civil Suit No. 55/1 of 2010, filed by Dharmender Bansal and Sanjay Bansal, plaintiffs No. 2 and 3 herein, against plaintiff No. 1 in the Court of Civil Judge (Junior Division), Nahan, District Sirmaur, H.P., the parties have arrived at a compromise and plaintiff No. 1 has agreed not to claim any right, title and interest in the land, the subject matter of dispute in the present suit. Also that consequent upon the compromise so arrived at, it is plaintiffs No. 2 and 3 alone who acquired titled in the suit land and now consequent upon a compromise arrived at between the applicant-defendant and plaintiffs No. 2 and 3, it is now he, who is owner-in-possession of the suit land. The complaint, therefore, is that since the plaintiff by way of compromise arrived at between him and plaintiffs No. 2 and 3 during the pendency of the suit in the Court of Civil Judge (Junior Division), Nahan has relinquished his all rights, title and interest in the suit land, therefore, the suit is not maintainable and the same can be disposed of without resorting to the lengthy trial and deciding issues No. 4 and 5, as preliminary. 4. 4. In reply to the application filed by non-applicant-plaintiff No. 1, he has admitted the contents of para 4 thereof being matter of record, meaning thereby that he has not disputed the compromise having arrived at between him and plaintiffs No. 2 and 3 during the pendency of the suit in the Court of Civil Judge (Junior Division), Nahan. Plaintiffs No. 2 and 3 have also not disputed the compromise and rather supported the claim of the applicant-defendant. They even have also filed OMP No. 295 of 2015 with the prayer that a sum of Rs. 35,00,000/- received by plaintiff No. 1 from plaintiffs No. 2 and 3, towards sale consideration of the suit land is refunded to them. In paras 3 and 4 of this application there is reference qua the compromise so arrived at between plaintiffs No. 2 and 3 and plaintiff No. 1 Surender Nath qua the later has not disputed such averments in the reply filed to that application also. 5. It is in this backdrop, I have heard learned counsel representing the parties on both sides. While on behalf of the applicant-defendant reference has been made to the provisions contained under Order 14 Rule 1 of the Code of Civil Procedure, reliance has also been placed on the judgment of the apex Court in Abdul Rehman vs. Prasony Bai and Another, (2003) 1 SCC 488 . Mr. Kaushal, learned counsel has further canvassed that in view of the admission made by plaintiff No. 1-qua he has not left with any right, title or interest in the suit land, the suit is not maintainable. Learned counsel representing plaintiffs No. 2 and 3 has also supported the arguments addressed on behalf of the defendant-applicant. However, learned counsel representing plaintiff No. 1 Surender Nath has urged that all the issues framed in the suit are decided together as according to him treating issues No. 4 and 5 preliminary will result in miscarriage of justice to plaintiff No. 1. He has also submitted that the ratio of the judgment supra is distinguishable in the give facts and circumstances of this case. 6. He has also submitted that the ratio of the judgment supra is distinguishable in the give facts and circumstances of this case. 6. On analyzing the rival submissions and also the record of this case available at this stage, it would not be improper to conclude that in terms of sub-rule 1 of Order 14 CPC, the issues arise from proposition of fact or law pleaded by one party and denied by the others. While the plaintiff alleged the proposition of facts or law to show a right to sue the defendant to constitute his defence, the Court is required to ascertain as to on what material preposition of facts or law, the parties are on variance and shall thereupon proceed to frame and record the issues. Plaintiff No. 1 has set out his case in the plaint to show a right to sue and the defendant has set out his case to constitute his defence. The issues stand framed on the basis of the pleadings of the parties. Issues No. 4 and 5 read as follow: “4. Whether in view of the compromise arrived at between the parties during the pendency of the suit in the lower Court, the present suit is not maintainable? OPD. 5. Whether the plaintiffs have no locus-standi to file and maintain the present suit? OPD. 7. As a matter of fact, the controversy under these issues pertains to the maintainability of the suit and locus standi of the plaintiff to file the same. These issues, as a matter of fact, emerge from the defence of the applicant-defendant that plaintiff No. 1 in a compromise arrived at with plaintiffs No. 2 and 3 during the pendency of the suit in the Court of learned Civil Judge (Junior Division), Nahan has relinquished his right, title and interest in the suit land in favour of plaintiffs No. 2 and 3 and also that now it is the applicant-defendant in possession of the suit land consequent upon the settlement arrived at between him and plaintiffs No. 2 and 3. In case these issues are answered in favour of the applicant-defendant, there may not be any necessity to hold further trial in the suit. In case these issues are answered in favour of the applicant-defendant, there may not be any necessity to hold further trial in the suit. In view of the ratio of the judgment of the apex Court in Abdul Rehman’s case cited supra, the suit can be disposed of on preliminary issues and also that a issue of res judicata/constructive res judicata and also of maintainability of the suit can be adjudicated as preliminary issues, if facts are admitted. Since the plaintiff, in reply to the application, has not denied the compromise having been arrived at between him and his brothers plaintiff No. 2 and 3 during the pendency of the suit in the Court of Civil Judge (Junior Division) Nahan, therefore, he could have seek the declaration as sought in the present suit is highly doubtful. Anyhow, evidence is required to be produced by the parties on both sides on both issues and this aspect of the matter can thereafter be decided judiciously and authentatively, however, so far as this application is concerned, this Court is satisfied that issues No. 4 and 5 should be taken as preliminary and decided after taking on record the evidence to be produced by the parties on both sides. The application is accordingly allowed and stands disposed of.