Civil Revision No. 164 of 2008 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No. 164 of 2008
Date of decision: 7.05.2009.
Smt. Gindori
Petitioner
Versus
Smt. Kitabo and others
...Respondents
CORAM: HON'BLE MR. JUSTICE S.D.ANAND.
Present: Mr.Rakesh Nehra, Advocate for the petitioner.
Mr.Kulvir Narwal, Advocate for the respondents
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S.D.ANAND, J.
The plaintiff-petitioner is in revision against order dated
17.11.2007 vide which the learned Trial Court, while allowing a plea
under Section 10 read with Section 151 C.P.C. in favour of
defendants-respondents, ordered the stay of the proceedings of the
suit.
There is no controversy between the parties insofar as
the following factual aspect is concerned.
Mst. Gindori (hereinafter referred to as “the plaintiff-
petitioner”) filed a civil suit (No.497 of 1993) against her father Kirpa.
That suit was decreed, vide judgment and decree dated 27.7.1993.
It was a collusive suit. Two mutations No. 1888 and 677 (pertaining
to the land of two villages) on the basis thereof were sanctioned on
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17.9.1993. The father of defendants-respondents challenged the
validity of the decree dated 27.7.1993 ( in Civil Suit No. 497 of 1993)
by filing a civil suit (no.1010 of 1993). That suit was decreed and the
decree dated 27.7.1993 was ordered tobe set aside. The plaintiff-
petitioner filed an appeal in the District Court which came to be
allowed on 24.10.2002. A Regular Second Appeal (No. 1283 of
2003) against the judgment and decree dated 24.10.2002 was filed
by the defendants-respondents in their capacity as Legal
representatives of their father who died in the meantime. That RSA
has been admitted to a hearing. Subsequently, the respondents-
legal representatives made a presentation to the revenue authorities
that a civil suit (No. 565 of 1998) filed by them against the plaintiff-
petitioner herein (qua the property in suit) had been decreed by the
Court of Ms. Manisha Batra, Civil Judge (Junior Division),
Bahadurgarh, vide judgment and decree dated 4.8.1998. On that
presentation, the respondents-legal representatives were able to get
a mutation in respect of this very land sanctioned. The plaintiff-
petitioner filed a civil suit (No.127 dated 4.6.2003) to obtain the
invalidation of the judgment and decree dated 4.8.1998 passed in
Civil Suit No.565 of 1998 on an averment that “no such civil suit
bearing suit No.565 titled as Smt. Kitabo and others Vs. Smt. Gindori
regarding suit land was ever filed in the Court of Ms. Manisha Batra,
Sub Judge Bahadurgarh nor the Hon’ ble Court of Ms. Manisha
Batra, ever passed any decree dated 4.8.1998 in civil suit No.565
regarding the suit land.”
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The respondents filed a plea therein under Section 10,
read with Section 151 C.P.C., for the stay of the proceedings in that
suit. The averment, made in support thereof, was that the subject of
controversy is the same which is in issue in RSA No.1283 of 2003.
The plea found favour with the learned Trial Court which observed
that “the matter in dispute in the present suit and in RSA No. 1283 of
2003 is directly and substantially same. Parties in both, cause of
action and subject matter is same. The order passed in RSA would
obviously operate as resjudicata for the purposes of present suit”.
The plaintiff-petitioner has filed this petition to obtain
invalidation of the view aforementioned.
Learned counsel, appearing on behalf of the plaintiff-
petitioner, argued that the present suit has been filed only to obtain
an order about invalidation of the judgment and decree dated
4.8.1998 passed in Civil Suit No.565 of 1998 on the essential
premise that no such suit ever came to be filed or decreed by the
Civil Court. In support of the advocated view, the learned counsel for
the petitioner draw sustenance from the affidavit/examination-in-chief
of Sh.Rajesh Kumar, Civil Ahlmad who made a record-based
statement to the effect that the civil suit register pertaining to the year
1998 does not contain an entry about the institution/disposal of any
civil suit bearing No. 565 of the year 1998. He also made deposition
to the effect that cases entered at serial no.1 to 370 only were
instituted in the concerned Court during the year 1998. This witness
further informed the Court that the disposal register had been
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deposited in the record room. In order to buttress that plea Shri
Ramesh Bhardwaj, Record Keeper, in the form of an affidavit-based
examination-in-chief, testified on the basis of Goshwara register for
the year 1998 that Civil suit No.565 of the year 1998 titled Smt.
Kitabo Vs. Gindori does not stand entered in the Bastas pertaining to
village Dariyapur and Lohat. He also testified, on the basis of the
disposal register, entries pertaining to the Court of Ms. Manisha
Batra, Civil Judge (Junior Division), Bahadurgarh, that no such case
is entered in the disposal register either.
Though there can, obviously, be no dispute about the
factual averment that the parties to the previous litigation (qua which
RSA No. 1283 of 2003 is presently pending) and the present
litigation are the same and so also is the property in question, there
can be no escape from the conclusion either that in the present case
the challenge is to the very existence of the decree dated 4.8.1998
in civil suit no.565 of 1998. The plaintiff-petitioner has made an
averment in the present suit that decree dated 4.8.1998 in civil suit
never ever came to be passed by the purported Court of Ms.
Manisha Batra, Civil Judge (Junior Division), Bahadurgarh. Whether
plaintiff-petitioner ultimately succeeds at the trial or not is an
altogether different phenomenon. Qua the commonness of the
parties and the cause in the previous suit, there is no controversy. It
is the respondents who approached the revenue authorities and got
mutation sanctioned in their favour(qua the land in suit) on the basis
of civil court decree dated 4.8.1998 purported to have been passed
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by Court of Ms. Manisha Batra, Civil Judge (Junior Division),
Bahadurgarh in Civil suit no.565 of 1998. There can, thus, be no
escape from the conclusion that the fact of commonness of parties
between the previous litigation and the present litigation
notwithstanding, the nature of controversy in the present suit is
altogether different. While the previous litigation pertains to the
validity or otherwise of the collusive decree dated 27.7,1993 , the
present cause calls into question the very existence of the decree
dated 4.8.1998.
In the light of foregoing discussion, the petition shall stand
allowed. The impugned order dated 17.11.2007 shall stand set
aside. The learned Trial Court shall proceed further in the matter in
accordance with law.
May 07, 2009 (S.D.Anand) Pka Judge