Satbir v. Shiv Narayan & Ors.

Mr.Sandeep Kotla, Advocate for the respondents. M ehinder S ingh S ullar , J. (Oral) The challenge in this appeal instituted by Satbir son of Sobha Chand appellant-defendant No.1 (hereinafter to be referred as “defendant No.1”) is to the judgment/order dated 25.2.2010, vide which, the Ist Appellate Court accepted the appeal filed by Shiv Narayan, Kartar and Mahender Singh sons of Lehri respondent-plaintiffs (hereinafter to be referred as “the plaintiffs”) and remanded the case to the trial Court to be decided alongwith the connected case.

2. The matrix of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record, is that one Pat Ram (deceased) claimed to have succeeded the property in dispute from the common ancestor of the plaintiffs. According to the plaintiffs, they are immediate preferential legal heirs to inherit and the defendants have got no right, title and interest in the suit property. Satbir defendant No.1 was stated to have obtained the collusive judgment/decree dated 26.3.1990 by impersonation and playing fraud in a suit titled as “Satbir Singh Vs. Pat Ram” and got mutated the property in dispute in his favour, vide mutation No.916 dated 17.5.1990. The plaintiffs, claiming themselves to be owners of the disputed property, have challenged the collusive judgment and decree dated 26.3.1990 in the present suit (hereinafter to be referred S.A.O.No.14 of 2010 2 as “Ist suit”).

3. It is not a matter of dispute that Kanwar Lal and others, claiming themselves to be collaterals of Pat Ram deceased, have also challenged the same collusive judgment and decree dated 26.3.1990, in suit titled as “Kanwar Lal and others Vs. Satbir and others” (for short “the second suit”). Shiv Narayan etc. plaintiffs in Ist suit, moved an application for impleading them as a party in the second suit, invoking the provisions of Order 1 Rule 10 CPC, which was allowed by the trial Court, vide order dated 15.3.2004. This order was challenged by Kanwar Lal etc. in Civil Revision No.1785 of 2004 in this Court. The said order, impleading Shiv Narayan etc. as a party in the second suit, was set aside. Since the same very collusive judgment and decree dated 26.3.1990 were challenged and the plaintiffs claimed themselves to be owners in both the suits, so, this Court directed the District Judge, Gurgaon to allocate/transfer the present suit to the same Court, in which, the second suit is pending and both the suits were directed to be decided on the same day, vide order dated 29.1.2007.

4. Be that as it may, both the suits were not consolidated, for the reasons best known to District Judge, but having completed all the codal formalities, the trial Court dismissed the Ist suit, vide judgment and decree dated

16.3.2007.

5. Aggrieved by the judgment and decree of the trial Court, the plaintiffs filed the appeal. The Ist Appellate Court accepted the same, set aside the judgment and decree of the trial Court and remanded the case for fresh decision alongwith the connected case, vide impugned judgment/order dated 25.2.2010.

6. The appellant-defendant No.1 did not feel satisfied with the impugned judgment/order of the Ist Appellate Court and filed the present appeal. That is how, I am seized of the matter.

7. Having heard the learned counsel for the parties, having gone through the record of the case with their valuable help and after bestowal of S.A.O.No.14 of 2010 3 thoughts over the entire matter, to me, there is no merit in the appeal.

8. The main argument of the learned counsel for the appellant- defendant No.1 that since the plaintiffs did not produce the copy of order of this Court, vide which, both the indicated suits were ordered to be consolidated, which otherwise became redundant so, they are estopped from taking the benefit of the same at this stage, is not only devoid of merit but misplaced as well.

9. As is evident from the record that this Court has directed the District Judge and it was his duty to consolidate both the cases and the plaintiffs cannot possibly be blamed, in this relevant connection.

10. Meaning thereby, this Court has specifically directed that both the suits should be decided by the same Court simultaneously, but it remained an unfolded mystery, as to why the District Judge did not transfer the indicated case to the same Court to be decided alongwith other connected case. However, the trial Court decided the first suit No.102 of 1993, vide judgment and decree dated

16.3.2007.

11. Therefore, taking into consideration the fact of directions of this Court contained in the order dated 29.1.2007 rendered in CR No.1785 of 2004, the Ist Appellate Court did not have any option and rightly set aside the judgment and decree dated 16.3.2007 of the trial Court and remitted back the case for its trial alongwith the second connected case. Thus, the impugned judgment/order cannot possibly be termed as illegal in any manner, as urged on behalf of defendant No.1 and contrary arguments of his learned counsel deserve to be and are hereby repelled, under the present set of circumstances.

12. There is another aspect of the matter, which can be viewed from a different angle. Admittedly, the plaintiffs in both the indicated suits, claiming themselves to be the collaterals of Pat Ram, have challenged the same collusive judgment and decree dated 26.3.1990 passed in favour of defendant No.1 on the grounds of impersonation and fraud etc. That means, the controversy, subject S.A.O.No.14 of 2010 4 matter and issues raised in the first suit are identical to the one, which are directly and substantially involved in the second suit. Above being the position, the result of one suit would naturally have the direct bearing on the decision of other suit. In that eventuality, it would otherwise be expedient and in the interest of justice and fair play that both the suits are decided simultaneously by one and the same Court, in order to avoid the possibility of conflicting decisions in the same set of circumstances of lis between the parties. Thus, I am of the view that the Ist Appellate Court has rightly accepted the appeal and remanded the matter to the trial Court for fresh decision alongwith the connected case, vide impugned judgment/order dated 25.2.2010.

13. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.

14. As no other legal infirmity has been pointed out in the impugned judgment/order by the learned counsel for the appellant-defendant No.1, therefore, there is no ground to interfere with the findings of the Ist Appellate Court, which are hereby maintained. Hence, the present appeal is hereby dismissed, in the obtaining circumstances of the case.

15. Needless to say, the District Judge, Gurgaon would deeply enquire into the matter, as to why the order of this Court was not complied with and both the suits were not consolidated and submit his detailed report in this regard to this Court within a period of one month positively. (Mehinder Singh Sullar) Judge

12.7.2010 AS