461 1 6 RSA No9350f 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No1935of 2009 Date ofdecision 1082010 1 0 1 0 C HarbansSinghand another Appellants C5 I versus Z Gurpreet Kaur and others I C6 CORAM HONBLE MRJUSTICE KCPURl 7 Z Il Present1 Mr Deepinder SinghAdvocatefor the Mr RAulakh Advocatefor Nos l and 2 KC PURJ J This is a regularsecond appealdirectedby against the judgmentdated 10062008 passedby Shri JChohan AdditionalDistrictJudge vide which theappealpreferred bythe defendantsagainst thejudgment dated 1232007 passedbyMrasvir Singh KangPCS Additional Civil JudgeSenior Divisior Zira the KUMAR SURESH SHAM LAL 2012.11.09 14: 24 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 462 RSA No935 of 2009 2 suitofthe plaintiffsstood dismissed Shornoff unnecessarydetails the case of the plaintiffs is that the defendantsin furtherance of their common intention commiued the murderof Baldev Singhtheir father and the defendants were challaned e underSections302 326 323 read with Section34 ofthe Indian Penal Code 0 The defendantswere tried convictedand sentencedvide dated 0 I 211997 Baldev Singhdeceased was the only bread winner of his 0 familyHe owned 7 acres ofland and also usedto take 10 acres ofland on I lease every year and his income from agriculture was about 15 lacs per Z annulll Besides this he also used to run a dairyfarm and from that lr business his annual income was about Rs00001e It has been 8lrther pleaded that the deceasedused to contributehis entire income towardsthe 08 C familyafler retaining Rs3000 for his personal necessities The plaintiffs 7 have to engage a Siri who took Rs00001 per year Theyhavealso to Z spendRs600001 for treatment of Baldev Singhdeceased claimed Rs3000001 as on account of the murder of their fatherbywrongfulacts ofthe defendants The defendantscontestedthe suit of the plaintiffsprimarily on thegroundthat the suit is hopelessly barredbylimitation On merits the defendantsdeniedhavingcommittedthe murder of Baldev Singh According to them Baldev Singhwas habitual drunkard and on 192 1995 Pal Singhand deceasedBaldev Singhwere under the influenceof liquorand theywere causedinjuriesbysome unknown persons and theywere Iyingin the fields under the influence of liquorand when Baldv Singhand Pal Singhdid not retum to their housestill mid night their KUMAR SURESH SHAM LAL 2012.11.09 14: 24 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 463 9 RSA Nol935 of 2009 3 memberssearchedthem and found them lyingin the flelds underthe influenceof liquorBoth were admittedin hospital and death of Baldev Sighwas causeddue to lack of medicalaid and of doctors The pleataken by the defendantsis that Baldev Singhwas unflt to do any m work as he had met with an accident in the year 1989 and had 0 0 causeda fracture lll spinal cord Denyingotheraverments theyprayed for I dismissalofthe suit C5 I The learnedtrial Court framedthefollowingissues Z r 1 Whethertheplaintiffs are entitled to recover Rs300000 as I and from the defendants20PP 08 2 Whether plaintiffs are entitledto interest if so how much 2 oo OPP 7 3 Whether the suit is barredbytime 20PD 4 Relief The partieshave led theirrespective evidence on the aforesaid 1SSues and after the same and hearingthe learned counsel for thepartiesthe trial Court decreed the suit of the plaintiffor recovery of Rs3000001 with costs and interest 6Io per annum from the date of judgment till realization Feelingdissatisfied with the judgment dated 1232007 the defendantspreferred appealbeforetheFirst Appellate Court The said appealwas dismissedby learned Additional District JudgeFerozepur vide judgment dated1062008 ry KUMAR SURESH SHAM LAL 2012.11.09 14: 24 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 464 44 RSA No935 of 2009 4 Still dissatisfiedwith both the mentioned above the have thepresentregularsecond appeal 1 have heard learned counsel for the parties and have gone CL through the recordsofthe caseo 0 The learnedcounsel for the has submittedthat the C0 D ivision Benchof this Court has the byholdingthat I C5 of murder of Baldev Singhagainst them has not been provedand they have beenfalsely So it is submittedthat the said Z IS relevantfor the decision of the presentcase The same set of witnesses before the Criminal Court as well as Civil Court The were ofthe Division Bench the be relied upon and 08 QO the suit of the qua the be dismissedby seuingthe 7 anddecrees ofboth theCourts below The next Iimb of argumentsadvanced by the counsel for the Qm is that thereis of of Order 32Rule 12 ofthe CodeofCivil Procedurein as much as plaintiffNosland 2 havenot adopted the suit on attaining their age ofmajorityThe Guardian Courtcontinue with the suit Learned counsel for the has further contendedthat suit is not within limitation The allegedoccurrence has taken placeon 21A997 The suit could have been filed within a periodof one yearand assuch the same is time barred Froln the submissionsmadebyboth the counsel for theparties followingsubstantialquestions oflaw have arisen KUMAR SURESH SHAM LAL 2012.11.09 14: 24 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 465 1 RSA Nol935 of 2009 5 1 Whether thejudgment of acquittalpassedby the Division Benchis binding on theCivil Court 2 2 Whetherthe suit can be dismissedfor of order32 Rule 12CPC 2 3 Whether the findingof both the Courts below that the suit is within limitation is perverser7 0 0 The argumentsadvanced by the counsel for the I C5 Iooksattractivebut without any legalforce I No doubt the Division Bench of this Court vide Z dated273 2006 has the present but in view of the m settled provisionsof law laid down lll the recent of three I judgesSved Aksari Hadi Ali Aueustine lmam 8t Anr VS State IDelhi 08 Admnl Sz Anr in reportedIIl 200921RCR Criminall 520 it is clear thatjudgment of the CriminalCourt is not binding on the Civil Court and S7 Z Vlce versa The Civil Courthas to giveitsown finding the m murder of Baldev SinghThere is concurrent findingof fact that the appellantalongwith two other accusedhave murderedBaldev Singhand that have taken up partin the occurrence and thatbeinga Onding of fact cannot be interferedin theregularsecond appealThe observations madebythe Division Bench in thejudgment that seemto have beenfalselyimplicated is ofno consequenceas those are not binding on the Civil Court Both the Courts below have and reopreciated the evidence on the flle andreturneda unimous ndingthatthe t havetaken activepan in themurderofBaldev Singh 1 KUMAR SURESH SHAM LAL 2012.11.09 14: 24 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 466 4 RSA No9350f 2009 6 6 So far as the submissionmade by leamed counsel for the regarding Order 32 Rule 12 CPCis concerned that submission also does not helpthe case of the in any manner The minors havethe rightto adoptor abandonthe suit It has nowhere come on the 1C recordthat who414emlnors at the time of filingthe suit have l 1 0 abandonedthe suit on the age C AuthoritySaraswati Dass and othersvs Pravat Kumar Sahoo I C5 and another 2002 641RCR Civill 659 doesnot helpthe case of the I appellant in any manner as in thal case on attaining the age ofmajority the Z choice of the minor has to be soughtIf the minor allowed the case to C proceedthe decision of the case would be certainlybindingupon him I There is no dispute aboutthat of law However no a5 has been cited by the leamed counsel for the appellantthat suit of the plaintiffcan be dismissedwithout callingthe minor 2 Z So far as the argumentadvancedbythe leamed counsel for the regardinglimitation 1S concerned that argument is sel6n destructiveto the otherargumentsraisedbythe learnedcounsel inasinuchas the counsel for the hasarguedthat were minors at the timeoffilingthe suit It is settledlaw thatthe mionorcan file suit even after attaining the age ofmajontySothe pointoflimitation isalso not available to the In view of the above discussion the appealis without any ment and the same standsdismissedwith costs Counsel fees is assessed Rs50001 Decree sheetbe prepared KUMAR SURESH SHAM LAL 2012.11.09 14: 24 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document 467 w RSA No35 of 2009 7 A copy of this be sent to the trial Court for strict 1 August 2010 JlJDGE SV 1 0 1 C3 C5 J Z 7 I c6 W2 Z Clm 9S 00 r 5 1 lJ J 1 4 ee d KUMAR SURESH SHAM LAL 2012.11.09 14: 24 True Scanned Copy of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:00 I attest to the accuracy and integrity of this document