C. R. No. 7107 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 7107 of 2008 Date of Decision : May 27, 2010 Ramneek Kaur and another .... Petitioners Vs. Sikander Singh and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sumeet Mahajan, Senior Advocate with Mr. Amit Kohar, Advocate for the petitioners. Mr. M. L. Saggar, Senior Advocate with Mr. G. S. Brar, Advocate for the respondents. * * * L. N. MITTAL, J. (Oral) : C. M. No. 10085-C-II of 2010 : Allowed as prayed for, subject to all just exceptions. C. M. No. 10086-C-II of 2010 : Application is allowed and Annexure R-1 is taken on record, subject to all just exceptions. Main Case : Defendants no.1 and 2 have preferred the instant revision C. R. No. 7107 of 2008 2 petition under Article 227 of the Constitution of India impugning order dated 11.08.2008 (Annexure P-6) passed by learned Civil Judge (Junior Division, Ludhiana, thereby dismissing application moved by defendants no.1 to 3 i.e. petitioners and proforma respondent no.2 herein under Section 151 of the Code of Civil Procedure for dismissal of the suit instituted by Sikander Singh – respondent no.1 against petitioners and proforma respondents no.2 to 4. Plaintiff-respondent no.1 earlier filed two suits i.e. Suit No.178/334 of 14.05.1979/07.09.1981 titled Sikander Singh vs. Kulwant Kaur, decided on 10.01.1983 and Civil Suit No. 343 of 1981 titled Sikander Singh vs. Sikander Kaur and others, also decided on 10.01.1983. Both the said suits were dismissed by the trial court. However, first appeals preferred by Sikander Singh plaintiff were allowed by Additional District Judge, Ludhiana on 11.10.1984. The plaintiff in the instant suit challenged mutations in favour of defendants no.1, 2, 4 and 5 regarding the suit land in view of judgments dated 11.10.1984 passed by learned Additional District Judge, Ludhiana in the previous two suits. Defendants no.1 to 3, in their application, alleged that judgments and decrees dated 11.10.1984 passed in the previous suits have been set aside by this Court in R. S. A. No. 3202 of 1984, vide judgment dated 05.02.2004 and Special Leave to Appeal (Civil) bearing No.13904 of 2004, preferred by the plaintiff, has been dismissed by Hon'ble Supreme C. R. No. 7107 of 2008 3 Court on 29.07.2004 and therefore, the plaintiff's suit is liable to dismissal as the very basis for filing the suit has been knocked out. Plaintiff contested the aforesaid application and inter alia pleaded that the previous suits filed by the plaintiff were based on Will dated 01.11.1969 executed by plaintiff's brother Ajit Singh and Will dated 29.01.1973 executed by plaintiff's other brother Gurmit Singh and since the said Wills were held not proved, the said suits were dismissed, but in spite thereof, plaintiff's mother Kartar Kaur inherited share in the estate of Ajit Singh and Gurmit Singh and on the death of Kartar Kaur on 30.07.1980, the plaintiff, as one of her heirs, inherited share in the suit land and therefore, the suit is not liable to dismissal. Learned trial court, vide impugned order dated 11.08.2008 (Annexure P-6), dismissed the aforesaid application moved by defendants no.1 to 3. Feeling aggrieved, defendants no.1 and 2 only have preferred 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 contended that since the instant suit filed by the plaintiff was based on judgment dated 11.10.1984, passed by learned Additional District Judge, Ludhiana, and the said judgment has been set aside by this Court, as upheld by Hon'ble Supreme Court, the very basis for the instant suit no longer exists and therefore, no C. R. No. 7107 of 2008 4 useful purpose would be served by proceeding with the suit any further. In support of this contention, reliance has been placed on a judgment of Hon'ble Supreme Court in the case of Shipping Corporation of India Ltd. vs. Machado Brothers and others reported as (2004) 11 Supreme Court Cases 168. It was observed therein that it is the duty of the Court to take notice of subsequent events and to take such action as is necessary in the interest of justice, which includes disposal of the infructuous litigation. For this purpose, it will be open to the parties concerned to make application under Section 151 of the Code of Civil Procedure to bring to the notice of the Court the facts and circumstances, which have made the litigation infructuous. On the other hand, learned counsel for respondent no.1-plaintiff contended that issues have already been framed in the suit and some evidence has already been led by the plaintiff and it was thereafter that defendants no.1 to 3 moved application for dismissal of the suit and therefore, the suit should be taken to logical conclusion by regular trial. I have carefully considered the aforesaid contention. Perusal of plaint (Annexure P-1), vide which plaintiff instituted the suit, reveals that whole claim of the plaintiff in this suit is based on judgment dated 11.10.1984 passed by learned Additional District Judge, Ludhiana in the appeals arising in the previous two suits. However, said judgment has since been set aside by this Court, as upheld by Hon'ble Supreme Court. So, the C. R. No. 7107 of 2008 5 very basis for the whole suit of the plaintiff is no longer in existence and therefore, it would be futile to proceed with the regular trial of the suit, which is infructuous litigation. Observations of Hon'ble Supreme Court, in paragraph 25 of the judgment in the case of Shipping Corporation of India Ltd. (supra), are fully applicable to the facts and circumstances of the instant case. Consequently, the revision petition has to be allowed. Learned counsel for respondent no.1 vehemently contended that Kartar Kaur had died during pendency of Suit No.178/334 of 14.05.1979/07.09.1981 (one of the earlier two suits) and thereupon, Sikander Kaur was impleaded as legal heir of Kartar Kaur on the basis of Will dated 12.03.1981, but the execution and validity of the said Will has not been adjudicated upon in the aforesaid earlier two suits and therefore, the same is required to be adjudicated upon. It is also contended that in this regard, the plaintiff has already filed another suit vide plaint Annexure R-1 dated 10.01.2005. However, the said question regarding inheritance of Ajit Singh and Gurmit Singh by Kartar Kaur and subsequent inheritance of Kartar Kaur by either Sikander Singh or Sikander Kaur is to be adjudicated upon separately and is not being adjudicated upon in the instant revision petition. In the instant revision petition, only suit instituted by plaintiff vide plaint Annexure P-1 is disposed of since the same has become infructuous as the very basis for filing the said suit has gone. For the reasons recorded herein above, I find that the impugned C. R. No. 7107 of 2008 6 order of the trial court is completely illegal and unsustainable. The trial court has failed to exercise jurisdiction, which vested in it. The trial court dismissed the application moved by defendants no.1 to 3 simply because the issues have been framed in the suit and some evidence has been recorded and also by observing that judgments passed by this Court in the previous suits are yet to be proved. These are not sufficient grounds for proceeding with the suit, when it has become infructuous. The revision petition is accordingly allowed. Impugned order dated 11.08.2008 (Annexure P-6) passed by the trial court is set aside and suit filed by plaintiff-respondent no.1 vide plaint Annexure P-1 stands dismissed. May 27, 2010 ( L. N. MITTAL ) monika JUDGE