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2017 DIGILAW 133 (PNJ)

Jaswinder Singh v. Jayant Kumar

2017-01-18

DAYA CHAUDHARY

body2017
JUDGMENT : Daya Chaudhary, J. The present revision petition has been filed under Article 227 of the Constitution of India to challenge impugned order dated 06.05.2016 (Annexure P-5) passed by Civil Judge (Junior Division), Hoshiarpur, whereby, the application moved by the petitioner-defendant under Sections 10 and 11 CPC was dismissed as well as order dated 09.11.2016 (Annexure P-7) passed by Civil Judge (Junior Division), Hoshiarpur, whereby, the application filed by the petitioner-defendant for review of order dated 06.05.2016 was also dismissed. 2. Briefly, the facts of the case as made out in the present revision petition are that the respondents-plaintiffs filed a suit for declaration to the effect that they being tenant are in possession of the land in dispute and also for permanent injunction restraining the petitioner-defendant from interfering in their peaceful possession. The suit was contested by the present petitioner-defendant by specifically stating that respondent No.2 was not the owner of property in dispute as he never purchased the same. The execution of pattanama was also denied by the petitioner-defendant. Respondent No.1 filed an application for correction in khasra girdawari, which was allowed. The petitioner-defendant preferred an appeal, which was decided on 17.05.2000. The Collector, Hoshiarpur set-aside the order of correction in khasra girdawari on the ground that the petitioner was not given any opportunity to defend his case and the case was remanded to Tehsildar-cum-Assistant Collector, IInd Grade, Tanda with the direction to decide the matter afresh after granting opportunity of hearing to the petitioner-defendant. 3. During pendency of the suit, the petitioner-defendant moved an application under Sections 10 and 11 CPC, to which, the respondents-plaintiffs filed reply. Said application was dismissed vide order dated 06.05.2016. Thereafter, the petitioner filed an application for review of order dated 06.05.2016, which was also dismissed vide order dated 09.11.2016. Both the aforesaid orders are subject matter of challenge in the present revision petition. 4. Learned counsel for the petitioner-defendant submits that the order passed in appeal in the case of correction in khasra girdawari was never challenged. The case was remanded back but no application was moved. Learned counsel further submits that the petitioner-defendant is in possession of the land in dispute for the last many years and in the application moved by the respondents for correction in khasra girdawari, the notice was issued at wrong address and he was proceeded ex-parte. The case was remanded back but no application was moved. Learned counsel further submits that the petitioner-defendant is in possession of the land in dispute for the last many years and in the application moved by the respondents for correction in khasra girdawari, the notice was issued at wrong address and he was proceeded ex-parte. The said order was challenged by the petitioner before Sub Divisional Magistrate-cum-Collector, Hoshiarpur and ex-parte order was set aside and the case was remanded back to Tehsildar-cum-Assistant Collector, IInd Grade, Hoshiarpur to decide the case afresh after granting opportunity to the petitioner to plead his case. The said order was never challenged by the respondents before any Court and as such, the same had attained finality. Learned counsel also submits that the name of the petitioner was again incorporated in the revenue records. The respondents filed the suit for declaration stating therein that they being tenant were in possession of the land in dispute. Learned counsel also submits that the version of the petitioner has been corroborated by the documentary evidence and the matter in controversy in the previously instituted suit before the Revenue Court and the present suit are directly and substantially the same between the parties. 5. Heard arguments of learned counsel for the petitioner and have also perused the impugned orders dated 06.05.2016 (Annexure P-5) and 09.11.2016 (Annexure P-7). 6. The application under Sections 10 and 11 CPC has been moved by the petitioner for dismissal of the suit as the Civil Court has no jurisdiction to interfere in the suit as the matter is pending before the Revenue Court. The application was contested by the respondents on the ground that only an application for correction in khasra girdawari was moved whereas there is no bar to challenge any entry in the Civil Court. There is no other civil suit pending between the parties in any Civil Court regarding the property in dispute. The Civil Judge (Junior Division), Hoshiarpur has dismissed the applications on the ground that the Civil Court proceedings are entirely different from the proceedings pending before the Revenue Court. 7. Admittedly, the application for correction in khasra girdawari was moved by the respondents, which was allowed and thereafter, the petitioner preferred an appeal, which was decided in his favour. The Civil Judge (Junior Division), Hoshiarpur has dismissed the applications on the ground that the Civil Court proceedings are entirely different from the proceedings pending before the Revenue Court. 7. Admittedly, the application for correction in khasra girdawari was moved by the respondents, which was allowed and thereafter, the petitioner preferred an appeal, which was decided in his favour. The Collector, Hoshiarpur set-aside the order of correction in khasra girdawari and remanded the case back to the Tehsildar-cum-Assistant Collector, IInd Grade, Tanda on the ground that the petitioner was not given opportunity to defend the case with a direction to decide the matter afresh after granting opportunity to the petitioner to plead his case. 8. The application for dismissal of the suit has been filed by the petitioner on the ground of res judicata. 9. As per provisions, the res judicata would be applicable in case, the suit earlier filed is pending and the pendency of application for correction in khasra girdawari cannot be said to be suit pending between the parties. It was simply an application for correction in khasra girdawari and as on today, no other civil suit is pending between the parties in any Civil Court except the present suit. 10. As per provisions of Section 10 CPC, it is applicable only to the suit and not to the other proceedings. Section 11 CPC deals with res judicata. The object of Section 10 CPC is to obviate the conflicts of decisions as incorporated. In Civil Procedure (Amendment) Act, 1976, two new explanations, namely, VII and VIII have been inserted in Section 11 of the Code to make the principle of res judicata more comprehensive and wide. Explanation VIII is reproduced as under:- "Explanation VIII- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide an issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised." 11. It is well settled proposition of law that the only requirement of applying principle of res judicata is that the matter raised directly and substantially in issue in both the suits/cases is the same. The purpose is that two proceedings cannot run parallel. It is to be seen as to whether the previously instituted suit and subsequent suit are parallel. It is well settled proposition of law that the only requirement of applying principle of res judicata is that the matter raised directly and substantially in issue in both the suits/cases is the same. The purpose is that two proceedings cannot run parallel. It is to be seen as to whether the previously instituted suit and subsequent suit are parallel. In case, the first suit was determined, the issue raised in the second suit would be res judicata. Admittedly, no other suit is pending and any proceeding for correction of khasra girdawari before the revenue authorities cannot be said suit. 12. Keeping in view the facts as mentioned above, there is no reason to interfere with the impugned orders and the revision petition being devoid of any merit is dismissed.