CR No.715 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.715 of 2009 Date of decision : 10-2-2009 Shiv Charan and others .... Petitioner VERSUS Misro Devi ....Respondent CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG Present: Mr. Prem Nath Aggarwal, Advocate, for the petitioners. RAKESH KUMAR GARG J. The present revision petition has been filed against the order dated 6-1-2009 passed by the Civil Judge (Junior Division) Rewari whereby the application under Section 10 of the Code of Civil Procedure filed by the petitioners for staying the subsequent suit filed by the present plaintiff / respondent, has been dismissed. As per the averments made in this revision petition, petitioners filed a suit for declaration and permanent injunction in the Court of Civil Judge (Senior Division) Rewari claiming themselves to be the sole owners in possession of the land measuring 5 Kanals 11 Marlas comprising in Rectangle No.10 Killa No.1/2 shown in blue colour in the plan attached with the plaint and further alleging that Mutation No.251 regarding the aforesaid land in favour of the Deen Dyal etc. (defendants in that suit) was illegal and the plaintiffs are entitled to get their names entered and sanctioned in the CR No.715 of 2009 -2- revenue record and as such, a decree may be passed in favour of the plaintiffs and against the defendants with costs. It was also prayed that decree for permanent injunction may also be passed restraining the defendants from dispossessing the plaintiffs forcibly who are in peaceful possession of the aforesaid land. It is further the case of the petitioners that after the filing of the suit by them which is pending, the respondent Misro Devi has filed a civil suit against the petitioners for permanent injunction claiming themselves to be owner in possession of land measuring 2 Kanals 16 Marlas i.e., ½ share of 5 Kanals 12 Marlas of agricultural land comprising Khewat No.18, Khatauni No.26, Rectanlge No.10, Killa No.1/2 (5-12) on the basis of registered sale deed No.4422 dated 15-10-2008 executed by Deen Dyal etc. (defendants of first suit) and mutation No.494 which has been sanctioned in favour of the respondents on the basis of this sale deed. The petitioners filed an application u/s 10 of the CPC in the aforesaid suit for staying the same as according to them the dispute pertains to the same property and is substantially between the same parties. The said application was contested by the respondent stating therein the she is bona fide purchaser for a valuable consideration of the suit property and that she was in possession of the said suit property. It was also claimed that she was not impleaded in the first suit and she had no knowledge or information of the said suit. The trial Court after considering the contentions of the parties dismissed the aforesaid application as under:- “Present application has been filed under Section 10 of CPC. This Section reads as follow:- “No Court shall proceed with the trial of any suit in which the matter in issue is also directly and subsequently in CR No.715 of 2009 -3- issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before (the Supreme Court). Perusal of this Section shows that for the application of this provision, parties and all the issues of both the suits must be the same in addition to the subject matter. A bare perusal of plaint of both the suits shows that the parties to the suit are different. The previously instituted suit is titled Shiv Charan Vs. Deen Dayal. Plaintiff (present defendant) had sought injunction against Deen Dayal etc. qua suit property. In the present suit, the plaintiff is Mishro Devi. Suit property is also not same in both the suits. Therefore, Section 10 is not applicable. If the subsequent suit is stayed under Section 10 CPC, then it shall cause prejudice to the plaintiff, who shall not be able to pursue her claim in the suit property. The application is therefore dismissed.” Challenging the aforesaid order of the trial Court, counsel for the petitioners has vehemently argued that civil suit No.504 dated 8-10-2008 titled as Shiv Charan Vs. Deen Dayal with respect to the same property is pending in the Court of Addl. Civil Judge (Senior Division) Rewari and the defendants in the aforesaid suit had alienated the suit property in favour of the respondent Mishro Devi who is plaintiff in the present/subsequent suit which has been filed in order to prolong the trial CR No.715 of 2009 -4- proceedings and with a mala fide intention and since the suit pertains to the same property between the same parties, therefore the same is liable to be stayed u/s 10 CPC. According to the learned counsel for the petitioners, the trial Court has erred while holding that suit property is different and thus the impugned order is liable to be set aside. In support of his case, the learned counsel has cited Vrinda Vs. Indira Devi, 1994(2) Civil Court Cases, 504 (Kerala). I have heard learned counsel for the petitioners and have perused the record. A perusal of the plaint filed in Civil Suit No.504 of 2008 (Annexure P-1) by the petitioners would show that the petitioners are claiming as co-sharers / joint owners in possession of agricultural land as described in the head note in Para No.1 of the plaint and have sought suit for declaration and permanent injunction against the defendants alleging therein that by virtue of a compromise effected in Civil Suit No.284/1990 titled as Shiv Charan and others Vs. Bishambar Dayal etc. the plaintiffs have become owners in possession of an area of 5 Kanals 11 Marlas of Rectangle No.10 Killa No.1/2. It has been further stated in this plaint that the defendants be restrained from dispossessing the plaintiffs forcibly who are in peaceful possession of the suit land as stated aforesaid. In the plaint filed in the subsequent suit i.e. civl suit No.1188 of 2008 by the respondent against the petitioners, it has been alleged that she purchased 2 Kanals 16 Marlas i.e., ½ share of 5 Kanals 12 Marlas of agricultural land comprising Khewat No.18, Khatauni No.26, Rectanlge No.10, Killa No.1/2 (5-12) situated in the revenue estate of village Kamalpur, Tehsil and District Rewari on the basis of registered sale deed No.4422 dated 15-10-2008 and the Mutation No.494 was sanctioned in her favour and the defendants/petitioners who are threatening to dispossess her be restrained CR No.715 of 2009 -5- to dispossess the respondent from the suit land. She is also claiming herself to be bona fide purchaser for valuable consideration and without notice. From the perusal of the plaints in both the suits, it is found that the description of the property in dispute in both the suits is different. In the first suit, the Khewat number, Khatauni number and Killa numbers of the property in dispute are different than the property in dispute as described in the subsequent suit. Faced with this situation learned counsel for the petitioners has stated that there was change of Khatauni numbers and Khewat numbers which have been duly explained. However I find no merit in this contention because at this stage while deciding application u/s 10 CPC there is no evidence or document on record to prove this contention. Moreover in the first suit filed by the plaintiffs, one Sarswati, widow of Sh. Bhola Ram is also arrayed as plaintiff along with the petitioners whereas there is no such mention of Sarswati, w/o Sh. Bhola Ram in the civil suit filed by the respondent against the petitioners. Thus the suit property and parties to the suit in both the suits are different and therefore the trial Court has rightly observed that if the subsequent suit is stayed then it shall cause prejudice to the plaintiff in that case who shall not be able to pursue her claim in the suit property. Even the relief claimed in both the suits are different. The respondent in the subsequent suit is claiming herself to be a bona fide purchaser for valuable consideration without notice of the suit land. This relief is not the subject matter of first suit. Even if in the first suit claim of the petitioner is upheld yet in the second suit respondent is entitled to prove her claim on the plea of bona fide purchaser. The judgment in Vrinda's case (Supra) is not applicable in the present case as in that case admittedly the subject matter in both the suits was the same and the parties in the both suits were substantially the same CR No.715 of 2009 -6- and both the suits were for Decree of permanent injunction, whereas in the present case as noticed above, subject matter of the dispute and parties to the suit are different. Even the relief sought in both the cases is of different nature. Thus, I find no merit in this petition and the same is dismissed. (RAKESH KUMAR GARG) 10-2-2009 JUDGE manju