Punjab-Haryana High Court
Satinder Kaur And Others vs Waryam Singh And Others on 29 March, 2012
Author: L. N. Mittal
Bench: L. N. Mittal
C. R. No. 1816 of 2010 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : C. R. No. 1816 of 2010
Date of Decision : March 29, 2012
Satinder Kaur and others .... Petitioners
Vs.
Waryam Singh and others .... Respondents
CORAM : HON'BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. Amar Vivek, Advocate
for the petitioners.
Mr. Shamsher Singh, Advocate
for respondents no.1, 2 and 4 to 7.
Mr. Ravi Sharma, Advocate
for respondents no.3 (a) and 3 (c).
None for remaining respondents.
* * *
L. N. MITTAL, J. (Oral) :
Petitioners herein filed two civil suits against respondents herein. In the second suit, Punjab Urban Development Authority and Sub Registrar were impleaded as additional defendants.
Both the aforesaid suits were consolidated by the trial court. However, the trial court passed judgment and decree in one suit only i.e. in C. R. No. 1816 of 2010 2 first suit. Defendants preferred first appeal against said judgment and decree of the trial court and prayed that said first suit be remanded for decision of both the suits together by the trial court. On the other hand, one of the plaintiffs filed application that aforesaid first appeal was barred by res judicata, in view of decision in the second suit having attained finality. This claim was based on plaintiffs' plea that in fact, both the suits were decided by the trial court by same common judgment, although particulars of the second suit were not mentioned in the judgment of the trial court.
Learned lower appellate court, vide impugned judgment dated 02.02.2010, has remanded the first suit to trial court for fresh decision in both the suits because the second consolidated suit was not decided by the trial court, although both the suits were required to be decided together.
Files of both the civil suits have been requisitioned and perused. Perusal thereof reveals that after consolidation of the two suits, separate zimni orders of the proceedings of various dates of hearing were not recorded in the second suit and zimni orders were recorded in first suit only. In the judgment and decree of trial court, particulars of the first suit have only been mentioned. There is no reference in the records of the trial court about fate of the second suit. Since both the suits had been consolidated, after decision of first suit, files of both the suits were consigned and the second suit is not being proceeded with by the trial court.
I have heard learned counsel for the parties and perused the C. R. No. 1816 of 2010 3 case file.
Counsel for the petitioners, at the outset, submitted that plaintiffs do not press their application moved in the first appeal that the said appeal is barred by res judicata, in view of decision in second suit having attained finality.
Counsel for the petitioners contended that relief claimed in the second suit was also claimed in the first suit by amendment of plaint, and therefore, relief claimed qua both the suits stands adjudicated by judgment and decree passed in first suit, and therefore, petitioners/plaintiffs may be permitted to withdraw the second suit, but it should not prejudice the merits of claim of the plaintiffs in the first suit, which has been decreed and the same should not be held to be barred by any provision of law merely on the ground of withdrawal of the second suit.
Counsel for the respondents, on the other hand, contended that separate issues have been framed in the second suit, which remains undecided. It was also submitted that before consolidation of the two suits, some evidence had also been recorded in the second suit. Issues framed in the second suit are required to be adjudicated upon by the trial court and evidence recorded in the said suit before consolidation is also required to be considered, it was so argued by counsel for the respondents.
I have carefully considered the rival contentions.
Application moved by plaintiffs in first appeal that the said C. R. No. 1816 of 2010 4 appeal is barred by res judicata is dismissed as not pressed.
As per submission of counsel for petitioners/plaintiffs, second suit filed by them has been rendered infructuous in view of the same relief having also been claimed in first suit by amendment of plaint. In this view of the matter, keeping in view all the circumstances, I am of the considered opinion that prayer of counsel for the petitioners that the second suit be dismissed as withdrawn without prejudice to first suit, as mentioned herein before, should be accepted. It would be an exercise in futility to remand the first suit to trial court for decision of both these suits together or to direct the trial court to separately decide the second suit, when the real issues arising in the second suit have already been adjudicated upon in the first suit by the trial court.
For the reasons aforesaid, the instant revision petition is allowed. Impugned judgment dated 02.02.2010 passed by learned Additional District Judge, Mohali, is set aside and first appeal bearing No.RT-18-J of 22.02.2007/01.10.2009 is restored to the files of the lower appellate court for decision on merits, in accordance with law, whereas the second suit filed by the petitioners bearing Civil Suit No.199 dated 28.05.1998 is dismissed as withdrawn, with stipulation that the withdrawal of the said second suit shall have no bearing on the merits of the first suit, out of which aforesaid first appeal has arisen and said first suit shall not be dismissed merely on the ground of withdrawal of second civil suit. C. R. No. 1816 of 2010 5
Parties are directed to appear before the lower appellate court on 30.04.2012. Records of both the courts below be sent to the lower appellate court. Lower appellate court shall decide the appeal as expeditiously as possible.
March 29, 2012 ( L. N. MITTAL ) monika JUDGE