Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1787 (HP)

Ganesh Kumar v. Pradeep Kumar

2018-10-03

AJAY MOHAN GOEL

body2018
JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioners have prayed for setting aside order, dated 31.05.2017, passed by the Court of learned Civil Judge, Court No. III, Amb, whereby an application filed by the present petitioners under Section 10 of the Code of Civil Procedure stands rejected by the learned Court below. 2. Brief facts necessary for the adjudication of the present case are as under: One Shri Gurbax Singh filed Suit No. 190/2009 against present respondent No. 1-Pradeep Kumar for declaration that Gurbax Singh was owner in possession of land measuring 0-39-02 hects., Khewat No. 337, Khatoni No. 538, Khasra Nos. 2023,2024,2025 and 2026, as entered in Nakal Jamabandi for the year 2003-2004 and defendant, i.e, Pradeep Kumar had no right, title and interest over the same and gift deed, dated 15.06.2009, was false, illegal, null and void being result of fraud and mis-representation and the same had no effect on the right, title and interest of the plaintiff, as he was owner in possession of the suit land. A consequential relief of permanent injunction for restraining the defendant from interfering in any manner the suit land was also prayed for. As per the plaintiff, he was an old aged rustic villager and defendant Pradeep Kumar, who was his relative, being son of his cousin brother, on 13.03.2009, took the plaintiff to Amb for executing a Will, which plaintiff intended to execute in favour of his real sister and defendant. 3. On 15.06.2009, defendant approached the plaintiff and told him that the Will so executed by the plaintiff, was required to be amended and on his request, plaintiff again accompanied him to Amb, where defendant in connivance with Deed Writer and marginal witnesses got manufactured a gift deed in his favour. On the strength of the said gift deed, which was a result of mis-representation, mutations were also got attested in his favour by the defendant and it was in this background that the suit was filed by plaintiff Gurbax Singh for the reliefs already mentioned above. 4. Thereafter, another suit was instituted by the present respondent Pradeep Kumar against the present petitioners, namely Ganesh Kumar and Manjeet Kumar, as also proforma respondent Sh. 4. Thereafter, another suit was instituted by the present respondent Pradeep Kumar against the present petitioners, namely Ganesh Kumar and Manjeet Kumar, as also proforma respondent Sh. Kabul Singh praying for the following reliefs: “That it is therefore prayed that decree for declaration to the effect that the plaintiff is owner in possession of land measuring 0-39- 02 hects bearing Khewat No. 337, Khatoni No. 538, Khasra Nos. 2023,2024,2025 and 2026 as entered in the Jamabandi for the year 2003-2004, situated in village Mawa Sindian, Tehsil Amb, District Una (H.P.) and the Sale Deed executed by defendant No. 3 in favour of defendant Nos. 1 and 2 the alleged Power of attorney of Gurbaksh Singh now deceased is wrong, incorrect, illegal, void and without any right, titled, interest and authority and has no binding effect on the right title interest of the plaintiff as owner in possession of the Suit land and for issuance of permanent injunction by way of consequential relief restraining the defendants from interfering in any manner taking forcible possession, cutting and removing the trees, raising any sort of construction and denying and disputing the right, title and interest of the plaintiff and alienating in any manner by way of Sale Gift or encumbering the suit land may please be passed in favour of plaintiff and against the defendants or any other such further relief may also be granted to the plaintiff as this Hon’ble Court may deem fit and proper as according to the circumstances of the case.” As per the plaintiff (Pardeep Kumar), he was owner in possession of the suit land, which was previously owned by Gurbax Singh and who had executed a gift deed in his favour. It was further mentioned in the plaint that defendants in the said suit threatened to forcibly dispossess the plaintiff on the ground that on the basis of a Power of Attorney executed by Gurbax Singh in favour of defendant No. 3, he had executed a sale deed in favour of defendants No. 1 and 2, (i.e., petitioners No. 1 and 2 in the present case). As per the averments made in the said plaint, deceased Gurbax Singh (i.e., plaintiff in the first Civil Suit) had no right, title and interest over the suit land post execution of the gift deed and on these basis, the said suit was filed. 5. As per the averments made in the said plaint, deceased Gurbax Singh (i.e., plaintiff in the first Civil Suit) had no right, title and interest over the suit land post execution of the gift deed and on these basis, the said suit was filed. 5. In this background, present petitioners filed an application under Section 10 of the Code of Civil Procedure in the subsequent suit filed by Pradeep Kumar praying that in view of the earlier suit pertaining to same suit land filed by late Gurbax Singh, proceedings in the subsequent suit be stayed. 6. This application stands dismissed by the Court of learned Civil Judge, Court No. III, Amb vide impugned order dated 31.05.2017, which stands assailed in this petition. Vide impugned order, learned Court below has rejected the application on the ground that though the suit property is common, yet one suit was instituted by Pardeep Kumar in his capacity as donee on the basis of a registered gift deed against Ganesh Kumar and others seeking declaration that Power of Attorney executed in favour of Kabul Singh by Gurbax Singh and thereafter by Kabul Singh in favour of Ganesh Kumar and Manjeet were wrong and illegal, whereas earlier suit was instituted by Gurbax Singh (now deceased) against Pardeep Kumar seeking declaration that gift deed dated 15.06.2009 purportedly executed by Gurbax Singh in favour of Pardeep Kumar was false and illegal and it was Gurbax Singh who was owner in possession of the suit land. Learned Court below also held that besides this, the parties to the lis were different and therefore, the application was devoid of merit. 7. I have heard learned counsel for the parties and have also gone through the documents appended with the petition including both the plaints as also the impugned order. 8. In my considered view, the order under challenge vide which learned Court below has rejected the application filed under Section 10 of the Code of Civil Procedure is perverse and not sustainable in law. Learned Court below has erred in not appreciating the essence behind the provision of Section 10 so incorporated in the Code of Civil Procedure and dismissed the application by applying hypertechnical yardsticks. Learned Court below has erred in not appreciating the essence behind the provision of Section 10 so incorporated in the Code of Civil Procedure and dismissed the application by applying hypertechnical yardsticks. Section 10 of the Code of Civil Procedure envisages that no Court shall proceed with trial of a suit in which matter in issue is directly or substantially in issue in a previous suit instituted between the parties “or between parties under whom they or any of them claim litigation” under same title where such suit is pending in same or other Court in India having jurisdiction to grant the relief. 9. The intent of Section 10 is to avoid multiplicity of litigation. Its object is to prevent Court of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two suits in respect of same subject matter between the same parties to avoid conflicting decisions being rendered by different Courts. One of the most essential ingredients of Section 10 is that the matter in issue in the subsequent suit, which is sought to be stayed must be directly and substantially in issue in the earlier suit, which is pending in the same or any other Court. 10. Coming to the facts of this petition, the first suit was filed by Gurbax Singh seeking declaration that the suit property was owned and possessed by him and that defendant Pardeep Kumar had no title or interest over the same and gift deed dated 15.06.2009 allegedly executed by Gurbax in favour of Pardeep was false, frivolous, illegal and thus null and void. It is not in dispute that this suit is still pending adjudication, though Gurbax Singh has died. The second suit pertaining to the same suit property has been filed by Pardeep Kumar, i.e., defendant in the first suit against Ganesh, Manjeet and Kabul seeking a declaration that he is owner in possession of the suit land and gift deed executed by Kabul Singh in favour of Ganesh and Manjeet, as also power of attorney executed by Gurbax in favour of Kabul Singh were wrong, illegal and void. 11. A perusal of the latter suit demonstrates that the genesis of the pleadings is the gift deed executed by Gurbax Singh in favour of Pardeep Kumar, which gift deed is under challenge in the first suit. 11. A perusal of the latter suit demonstrates that the genesis of the pleadings is the gift deed executed by Gurbax Singh in favour of Pardeep Kumar, which gift deed is under challenge in the first suit. In other words, the claim of Pardeep Kumar over the suit land is solely based on a purported gift deed executed by Gurbax Singh in his favour which in his lifetime stood assailed by Gurbax Singh in the earlier Civil Suit. Thus, both these suits pertain to the same suit land. Issues involved in the same are directly and substantially the same and are also between the parties under whom they or any of them claim litigation. This very important aspect of the matter has not been taken into consideration by the learned Trial Court. It has in fact dealt with the matter in a mechanical and hypertechnical manner without taking into consideration the pleadings of the suits in issue or the issues involved therein. 12. Accordingly, this petition is allowed. Impugned order dated 31.05.2017, passed by the Court of learned Civil Judge, Court No. III, Amb is quashed and set aside, as learned Court below has exercised jurisdiction vested in it with material irregularity resulting in gross injustice to the petitioners. It is further directed that the subsequent suit, i.e., Civil Suit No. 605/14/09, titled as Pradeep Kumar Vs. Ganesh Kumar and others shall remain stayed during adjudication of the earlier suit, i.e., Civil Suit No. 190/2009, titled as Gurbax Singh Vs. Pardeep Kumar. The petition stands disposed of, so also miscellaneous application(s), if any.