RSA No. 517 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 517 of 2008 (O&M) Date of Decision: January 25, 2010 Jangir Singh and others ...... Appellants Versus Balbir Singh and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Ms.Kamalpreet Kaur, Advocate for the appellants. Mr.Vikas Kumar, Advocate for the respondents. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the respondents holding that the judgment and decree dated 1.6.98 has been obtained by fraud and does not affect the rights of the respondents. Santa Singh was the owner of the land in dispute. He suffered a decree of part of the land (38K 10M) in favour of one of his sons Darshan Singh. Darshan Singh aforesaid entered into an agreement to sell the land in favour of the respondents. Since he prevaricated on the execution of the RSA No. 517 of 2008 (O&M) 2 sale deeds, respondents filed a civil suit on 8.6.1989 for specific performance dated 2.6.1989. The appellant No.1 filed a civil suit challenging the original decree suffered by his father (9.2.1984). The appellant No.1 also moved an application for being impleaded as a defendant in the suit for specific performance dated 2.6.89 (supra). The said application was allowed, however, thereafter the appellant No. 1 went ex parte. Subsequently the suit filed by the respondents for specific performance was decreed. During this interregnum the civil suit filed by the appellant No.1(challenging the decree dated 9.2.1984) was dismissed. He filed an appeal and a compromise decree was passed whereby it was held that the land in dispute being ancestral land, the father of the appellants could not suffer decree in favour of the other son Darshan Singh. It is, however, noteworthy to mention here that Darshan Singh was not a party to this compromise and had in fact, not even been declared ex parte by the Courts below. It was in these circumstances that the instant civil suit filed by the respondents was decreed holding that the compromise decree was vitiated and did not affect the rights of the respondents. The following questions have been proposed:- i) Whether the suit of the plaintiffs/respondents is hit by Order 7 of CPC? ii)Whether the suit of the plaintiffs/respondents is time barred? iii)Whether the present suit is hit by the principles of lis pendens? iv)Whether the present suit is liable to be stayed under Section 10 of CPC? v) Whether the present suit is hit by principle of res judicata? RSA No. 517 of 2008 (O&M) 3 The main question which has been argued by learned counsel for appellants is question No. (iii). She has stated that even in the suit filed by the appellant No.1 the respondents had moved an application for being impleaded as defendants and, in the wake of the said application being dismissed they had moved no appeal or revision. Thus, she contended that the respondents knew fully well about the pendency of the said suit and yet went ahead and got the sale deed executed in their favour. In my opinion the question of lis pendens would not be attracted in this case because both the courts have held that compromise decree obtained by appellants in the absence of beneficiary Darshan Singh was a clear case of fraud and collusion. Learned counsel has not been able to persuade me that this finding of fact is either based on no evidence or is based on such perverse misreading of evidence so as to liable for interference under Section 100 CPC. As regards question No (ii), learned lower Appellate Court has rightly found that the respondents did not know about the passing of the decree dated 1.6.98 and further that the suit was within limitation from the date of knowledge. Learned counsel has not been able to persuade me that this finding is vitiated. The next question argued by learned counsel for the appellants is question No.(iv). It is, however, not disputed that the application under Section 10 CPC was filed much later than the first opportunity which was available to the appellants to file the same. Further, technically it may be correct that the suit was liable to be stayed yet in view of the finding that the decree obtained by the appellants was a result of fraud and collusion and the fact that the suit was allowed to continue cannot be held to justify a finding in second appeal that the present decree should be set aside. RSA No. 517 of 2008 (O&M) 4 Questions No. (i) and (v) have not been argued. Consequently holding all the questions proposed against the appellants, this appeal as well as the application for stay are dismissed (AJAY TEWARI) JUDGE January 25, 2010 sunita