Punjab-Haryana High Court
Avtar Singh And Others vs Nasib Singh And Another on 11 October, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
-1-
Civil Revision No.6280 of 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.6280 of 2013
Date of decision: 11.10.2013
Avtar Singh and others
....Petitioners
Versus
Nasib Singh and another
....Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. B.S. Bedi, Advocate, for the petitioners.
*****
PARAMJEET SINGH, J. (ORAL)
Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 24.09.2013 passed by learned Additional Civil Judge (Senior Division), Narwana, whereby the application filed by the petitioner/defendants for dismissal of the suit on the ground of res judicata, has been dismissed.
Brief facts of the case are that respondent No.1/plaintiff filed a suit for declaration to the effect that he is owner in possession of the suit land. In the said suit, petitioners filed an application for dismissal of the suit on the ground of res judicata, which has been dismissed vide impugned order. Hence this revision petition.
I have heard learned counsel for the petitioners and perused Singh Ravinder 2013.10.24 16:16 I attest to the accuracy and integrity of this document Chandigarh -2- Civil Revision No.6280 of 2013 the record.
Learned counsel for the petitioners vehemently contended that as per the averments in the plaint, respondent No.1/plaintiff has purchased the land during the pendency of the earlier proceedings between Joga Singh and Avtar Singh. Learned counsel for the petitioners contends that since the property has been purchased during the pendency of the suit, the said findings are binding and the present suit is not maintainable. The principle of res judicata will apply to the plaintiff who is claiming through persons who were party in earlier litigation.
I have considered the contentions raised by learned counsel for the petitioners.
Admittedly, present suit has been filed for declaration to the effect that the decision in suit No.195 titled "Joga Singh and others vs. Avtar Singh and others" is not binding on the rights of the plaintiff and is liable to be set aside. In the plaint it is also alleged that decree in earlier suit is collusive between the parties, therefore, not binding on respondent No.1/plaintiff being not party to those proceedings.
Admittedly, res judicata is a mixed question of facts and law. Otherwise also in Sajjadanashin Sayed Md. B.E. Edr. (D) by L.Rs. vs. Musa Dadabhai Ummer and others, 2000(3) SCC 350, Hon'ble Supreme Court while considering its earlier judgments Isher Singh vs. Sarwan Singh, AIR 1965 Supreme Court 948, Mohd. S. Labbai vs. Mohd. Hanifa, AIR 1965 Supreme 1559 has observed that for proving Singh Ravinder 2013.10.24 16:16 I attest to the accuracy and integrity of this document Chandigarh -3- Civil Revision No.6280 of 2013 the res judicata not only judgment but plaint and written statement of earlier suit are required to be considered so that entire facts may be clarified in this regard. It cannot be decided by merely looking into the plaint and judgment of the earlier suit.
In view of this, I do not find any illegality or perversity in the impugned order.
Dismissed.
At this stage, learned counsel for the petitioners made a prayer that direction may be issued to the trial court that the petitioners may be given liberty to raise the plea that issues of maintainability as well as the res judicata should be treated as preliminary issues because these go to the root of the case.
I am of the view that such a prayer appears to be reasonable. If the petitioners make such a prayer these issues should be treated as preliminary issues. Learned counsel has made reference to the following observations of the learned trial court: -
"The plaintiff had purchased the land vide sale deed no.1365 dated 20.6.2008 but he was not made party in that suit and this conduct clearly shows that the plaintiff and defendant had colluded in that suit to cause loss to the purchaser who is plaintiff in this suit."
Learned counsel for the petitioners is also aggrieved that by this finding learned trial court has virtually decided the issue which is per se perverse.
I have considered the contention of the learned counsel for the Singh Ravinder 2013.10.24 16:16 I attest to the accuracy and integrity of this document Chandigarh -4- Civil Revision No.6280 of 2013 petitioners.
These findings are unwarranted, trial court should not have recorded such observations at this stage. When the court is deciding the application, it is not required to decide the main issues which may crop up in the suit. Observation of the trial court will not be binding in the subsequent proceedings or the order to be passed by competent court.
Any order that may be passed by the competent court shall not be influenced by these observations.
(Paramjeet Singh) Judge October 11, 2013 R.S. Singh Ravinder 2013.10.24 16:16 I attest to the accuracy and integrity of this document Chandigarh