C. R. No. 4951 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 4951 of 2008 Date of Decision : March 02, 2010 Karnail Singh and another .... Petitioners Vs. Smt. Dropti Devi and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Ashwani Bakshi, Advocate for the petitioners. Mr. Sanjeev Sharma, Advocate for respondents no.1 to 7. * * * L. N. MITTAL, J. (Oral) : Atmi Bai – predecessor of respondents no.1 to 7 filed suit against petitioners and proforma respondents no.8 and 9 seeking declaration that she is owner in possession of half share of 145 kanals 2 marlas land in suit and that judgment and decree dated 01.05.1982 passed in earlier Civil Suit No. 364-C of 1982 (regarding exchange of aforesaid suit land with half share of defendants in 58 kanals 15 marlas land) are null and void and not binding on the plaintiff and liable to be set aside and revenue entries recorded on the basis of said judgment and decree are liable to be corrected in favour of the plaintiff regarding the suit land. In the alternative, the plaintiff Atmi Bai pleaded that if the exchange is held to be valid, then possession of the exchanged land be got delivered to the plaintiff. C. R. No. 4951 of 2008 2 Learned Sub Judge Ist Class, Sirsa, vide judgment and decree dated 26.10.1990, dismissed the suit. The said judgment and decree Annexure P-2 have attained finality. In judgment dated 26.10.1990, it was observed in paragraph 10 of the judgment as under :- “10. Besides it, the plaintiff had earlier filed the civil suit no.478/1984 against the defendants by which she had challenged the exchange of suit land by Vir Singh in favour of defendants and that suit was dismissed under order 9 rule 8 CPC on 11.12.1984. In these circumstances too, the plaintiff was legally debarred to file the present suit against the defendants as per the provisions contained under Order 9 Rule 9 CPC. I am of the strong opinion that if, the plaintiff's suit for declaration of title and confirmation of possession and in the alternative, for recovery of possession is dismissed for default, he/she cannot be entitled to file the similar suit regarding the same property in Civil Court. The impugned judgment and decree dated 1.5.82 were legally passed in Civil Suit No. 364/1982 in favour of the defendants no.1 & 2. However, the plaintiff being owner of exchanged land forming part of Khewat No.505 and Khatoni No. 826, is entitled to its possession from the defendants no.1 & 2. Accordingly, the defendants no.1 & 2 are directed to deliver C. R. No. 4951 of 2008 3 the possession of this land to the plaintiff. The issues are accordingly decided in favour of the defendants and against the plaintiff.” On the basis of aforesaid observations, Atmi Bai filed execution petition seeking possession of the exchanged land i.e. half share in 58 kanals 15 marlas land, notwithstanding that the suit had been dismissed. Petitioners herein, who were defendants no.1 and 2, filed objections in the execution petition alleging that the suit filed by Atmi Bai stood dismissed and therefore, execution petition was not maintainable. Learned Executing Court, vide order dated 30.05.2002 (Annexure P-3), allowed the said objections and dismissed the execution petition. However, in appeal preferred by the legal representatives of Atmi Bai i.e. by respondents no.1 to 7 herein, lower appellate court, vide order dated 09.08.2004, set aside order (Annexure P-3) passed by the Executing Court and held respondents no.1 to 7 entitled to execute judgment and decree dated 26.10.1990. Petitioners herein filed C. R. No. 4208 of 2004 challenging order dated 09.08.2004 passed by the appellate court. The said revision petition was allowed by this Court vide order dated 01.03.2005 (Annexure P-4), but respondents were given liberty to seek amendment of the decree sheet, if any, in accordance with law. Thereupon, respondents no.1 to 7 filed application Annexure P-5 under Sections 151 and 152 of the Code of Civil Procedure (in short – CPC) for amendment/rectification of judgment and decree dated 26.10.1990 seeking relief of possession of the exchanged land in accordance with observations made in paragraph 10 of the original judgment as reproduced herein above. The said application was contested by the defendants by filing reply Annexure P-6. Learned trial court i.e. learned Civil Judge (Senior Division), Sirsa, vide impugned order dated 21.08.2008 (Annexure P-7) has allowed the said application thereby directing the defendants no.1 and 2/petitioners herein to deliver possession of the exchanged land to the plaintiff i.e. respondents no.1 to 7. Feeling C. R. No. 4951 of 2008 4 aggrieved, defendants no.1 and 2 have filed the instant revision petition under Article 227 of the Constitution of India. I have heard learned counsel for the parties and perused the case file. Learned counsel for the petitioners vehemently contended that in original judgment dated 26.10.1990, the suit was held to be barred by Order 9 Rule 9 CPC in view of dismissal of the previous suit under Order 9 Rule 8 CPC and therefore, the suit filed by Atmi Bai was rightly dismissed vide judgment and decree dated 26.10.1990 and for this reason, relief of possession of the exchanged land was not granted to the plaintiff notwithstanding that she was otherwise found entitled to the said relief on merits. Learned counsel for the petitioners accordingly contended that by exercising powers under Sections 151 and 152 CPC, judgment and decree dated 26.10.1990 could not have been reversed by decreeing the suit for possession of the exchanged land. Reliance in support of this contention has been placed by learned counsel for the petitioners on judgment of Hon'ble Supreme Court in the case of Dwaraka Das vs. State of M. P. and another reported as (1999) 3 Supreme Court Cases 500. On the other hand, learned counsel for respondents no.1 to 7 contended that since previous suit filed by Atmi Bai was not decided on merits, second suit filed by her was not barred by res judicata, as observed by Rajasthan High Court in the case of Fakir Mohammed vs. Ajaj Ali and others reported as 2002 (4) R.C.R. (Civil) 225. Learned counsel for respondents no.1 to 7 also contended that after holding the plaintiff to be entitled to possession of exchanged land and directing defendants no.1 and 2 to deliver possession thereof to the plaintiff, as per observations in paragraph 10 of the original judgment dated 26.10.1990, the suit could not have been dismissed and the suit should have been decreed for the aforesaid relief and it was only accidental slip and omission by the trial court that the suit was dismissed instead of granting relief of possession of the exchanged C. R. No. 4951 of 2008 5 land and therefore, the judgment and decree could be corrected by the trial court by exercising power under Section 152 CPC. In support of this contention, reliance has been placed on two judgments of Hon'ble Supreme Court i.e. State of Punjab vs. Darshan Singh reported as 2004 (1) Indian Civil Cases 557 and Lakshmi Ram Bhuyan vs. Hari Prasad Bhuyan and others reported as 2003 (1) Indian Civil Cases 758. I have carefully considered the rival contentions and perused the judgments cited at bar by learned counsel for the parties. In so far as contention of learned counsel for respondents no.1 to 7 on the basis of judgment of Rajasthan High Court in the case of Fakir Mohammed (supra) is concerned, the same is of no avail because the suit filed by Atmi Bai was not held be barred by res judicata, but was held to be barred by Order 9 Rule 9 CPC. The said finding attained finality as judgment dated 26.10.1990 was not challenged by the plaintiff by filing any appeal against the same. Since the suit filed by Atmi Bai was held to be barred by Order 9 Rule 9 CPC, no relief, whatsoever, could be granted to the plaintiff Atmi Bai and therefore, the suit was rightly dismissed in the ultimate analysis vide judgment and decree dated 26.10.1990, notwithstanding observations in paragraph 10 of the judgment that the plaintiff was entitled to possession of the exchanged land. The suit was dismissed because the suit was barred by Order 9 Rule 9 CPC and consequently, no relief whatsoever could be granted to the plaintiff. In view thereof, the impugned order passed by the trial court virtually decreeing the suit for possession of the exchanged land is patently illegal and unsustainable because no such decree could be granted by exercising powers under Sections 151 and 152 CPC, when the suit was rightly dismissed in view of finding on different issues. At the risk of repetition, it has to be highlighted that since the suit was held to be barred by Order 9 Rule 9 CPC, no relief could be granted to the plaintiff and C. R. No. 4951 of 2008 6 suit had to be dismissed, notwithstanding the finding that the plaintiff was otherwise on merits found entitled to possession of the exchanged land. If inspite of finding that the suit was barred by Order 9 Rule 9 CPC, relief of possession of exchanged land was to be granted to the plaintiff, then the provision contained in Order 9 Rule 9 CPC would be rendered completely redundant because it would have no meaning if the plaintiff found entitled to any relief on merits is granted that relief, notwithstanding that the suit is barred by Order 9 Rule 9 CPC. The judgments cited by counsel for the parties regarding power under Section 152 CPC are on the facts of each case. In the instant case, power under Sections 151 and 152 CPC could not be exercised to pass decree for possession of the exchanged land, when the suit itself was barred by Order 9 Rule 9 CPC. For the reasons recorded herein above, the instant revision petition is allowed and impugned order dated 21.08.2008 (Annexure P-7) passed by the trial court is set aside and application Annexure P-5 moved by respondents no.1 to 7 for amendment/correction of judgment and decree dated 26.10.1990 is dismissed. March 02, 2010 ( L. N. MITTAL ) monika JUDGE