High Court · 2012

On the request of learned counsel for the parties, this revision applica

3. This application under Article 227 of the Constitution of India is prefe rred against the order dated 5th August, 2011 passed by the learned Munsiff No. 1, Jorhat in TS No. 6/2007 rejecting petition no. 813/2011 by which the petition er had prayed for keeping proceedings of TS No. 6/ 2007 pending in the Court of Munsiff No. 1 at Jorhat in abeyance till disposal of TS No. 22/2011 pending in t he same Court.

4. A brief narration of the facts leading up to the filing of this revision petition is called for.

5. The petitioner claims to be the owner of a plot of land measuring 5B-2K, which was purchased by him from one Madan Mohan Maheshree by a registered sale deed dated 16th July, 1983. The opposite party-herein filed TS No. 33/1999 in th e Court of Civil Judge(Jr Division) No. 1 at Jorhat against the petitioner and a nother person in respect of the said plot of land, which, however, was withdrawn later on. But, during pendency of the said suit, the opposite party filed anoth er suit being TS No. 22/2000 in the Court of Civil Judge(Sr Division) at Jorhat praying for declaration of right, title, interest and confirmation of possession . One Salek Zamal was the main defendant in the said suit and the suit was decre ed ex-parte on 22.9.2000. Subsequently, T. Ex. Case No. 1/2003 was also started. There is no dispute that the suit land in TS 22/2000 covers also the lan 6. d which was purchased by the present petitioner, who had no knowledge about pend ency of TS No. 22/2000 involving the property bought by him. Later on, when he c ame to know about the decree passed in TS No. 22/2000, he filed a suit, which is presently numbered as TS No. 6 of 2007 in the Court of Munsiff No. 1 at Jorhat( the suit number had earlier undergone some changes). In the suit, among others, the petitioner prayed for declaration that the decree obtained in TS No. 22/200 0 is void, illegal and inoperative in law, confirmation of possession and injunc tion. The present opposite party, who was the defendant in the said suit, filed written statement.

7. ending for cross-examination of defendant’s witnesses. Learned counsel for the parties are in agreement that the suit is now p

8. In the interregnum, there was further development in the shape of filing of a suit by Salek Zamal, against whom the decree in TS No. 22/2000 was passed, which was registered as TS No. 15/2003. The subject-matter of the suit, accordi ng to learned counsel for the parties, revolves around the property purchased by the petitioner. The learned Civil Judge(Sr Division), Jorhat decreed the suit by judgment and decree dated 19th January, 2004 directing cancellation of the sa le deed dated 16.11.1970 executed in favour of the vendor of the petitioner. As a consequence thereof, following a precept issued, the Registrar had cacelled th e said sale deed. As the outcome of TS No. 6 of 2007 was dependant on the sale d eed executed by the vendor of the petitioner and as the sale deed of the vendor had been cancelled, in order to protect his interest, the petitioner filed anoth er title suit being TS No. 22/2011 in the Court of Munsiff No. 1 at Jorhat again st the said Salek Zamal and the present opposite party as defendants and some ot her persons as proforma-defendants praying for declaration that the judgment and decree passed in TS No. 15/2003 is also void, illegal and inoperative in law an d for declaring that the registered sale deeds dated 16.11.1970 and 16.7.1983 ar e valid and lawful, apart from the prayer of permanent injunction.

9. It is submitted by learned counsel for the parties that in TS No. 22/201 1, evidence has not yet been recorded, though written statements had been filed. Mr Sahewalla submits that in both the suits, namely, TS No. 22/2006 and 10. 15/2003, petitioner was a necessary party, as the property purchased by him was also the subject-matter of both the suits. Mr Sahewalla submits that if TS No. 6 /2007 is allowed to proceed, the fate of the petitioner will be sealed, inasmuch as the decree passed in TS No. 15/2003 will come in his way of obtaining any re lief, and it is in these circumstances, the petition was filed before the learne d trial Court to stay further proceeding of TS No. 6/2007, so as to advance the cause of justice. Mr Sahewalla submits that even though Section 10 CPC is not applicable i 11. n the facts and circumstances of the case, surely, power under Section 151 CPC c an be invoked, to stay further proceeding of TS No. 6/2007. Mr TJ Mahanta submits that the petition filed by the petitioner did not 12. invoke Section 151 CPC. There is no provision in the Code enabling the Court to stay the proceedings of a previously instituted suit and hence the learned trial Court committed no material irregularity in passing the order under challenge.

13. A perusal of the order of the learned trial Court would go to show that the learned trial Court is right in its conclusions with regard to interpretatio n of Section 10 of CPC in coming to the finding that in the facts and circumstan ces of the case, Section 10 is clearly not applicable. It also came to a finding that the plaintiff of TS No. 22/2011 was aware about the decree passed in TS No . 15/2003 as far back as on 14.7.2008 and not on 27.10.2009 as stated by the pet itioner, as would be revealed from his cross-examination. The learned trial Cour t also opined that notwithstanding the aforesaid, plaintiff filed the suit and t he same was proceeded with and only when the previously-instituted suit was at i ts final stage, the petition was filed for stay of further proceeding of TS No. 6/2007 and therefore, declined to invoke Section 151 CPC taking a view that allo wing the suit to be stayed would result in abuse of the process of the Court and injustice to the defendant.

14. There cannot be any dispute that there is a common strand between the tw o suits. There is no doubt that decrees were obtained in both the suits ex-parte involving the property purchased by the petitioner. The sale deed executed in f avour of the vendor of the petitioner having been cancelled, ex-parte, if at thi s stage TS No. 6/2007 is allowed to be taken to its logical end, it will not be difficult to hazard a guess regarding the outcome of the said suit. The date of knowledge of the petitioner regarding the cancellation of the sale deed execute d in favour of the vendor of petitioner, on which much reliance had been placed by the learned trial Court in not favourably considering the prayer under Sectio n 151 CPC, in the facts of the case, is not very material, as it is not the case projected that the petitioner knew about the cancellation of such sale deed pri or to institution of TS 6/2007.

15. In the aforesaid backdrop, this Court is of the opinion that ends of jus tice will be sub-served if both the suits are directed to proceed together for a just decision in the matter. The learned trial Court failed to exercise the jur isdiction vested in it by law under Section 151 CPC, and acted with material irr egularity in passing the impugned order and as such the same is set aside and qu ashed.

16. Since both suits are now at two different stages, the learned trial Cour t will not proceed with TS No. 6/2007 till such time TS No. 22/2011 reaches the stage of TS 6/2007. This court is satisfied that such a course is necessary for securing ends of justice. Once the suits are at the same stage, the learned tria l Court will proceed with the suits in accordance with law.

17. owed. No costs. With the above observations and directions, the revision petition is all