Courtesy:Mr.Gaurav Mehta. Facts: (a) A suit for possession (1st Suit) was filed by one Chiranji Lal in 1975 against Mohan & Sohan with respect to the suit property 10-Aurangzeb Road, New Delhi pleading ownership under a sale deed dated 31.1.1974 from late Jai Ram, the father of the defendants Sohan & Mohan. In his plaint Chiranji Lal pleaded that Jai Ram had purchased the property on 1.1.1974 vide a sale deed from Sh. Om Shastri. Mohan in his WS states that the sale deed by Jai Ram in favour of Chiranji Lal is void for lack of consideration. Sohan in this suit pleaded in his WS that actually he was the owner of the suit property because he had purchased the suit property earlier on 1.1.1973 from Om Shastri---the very person from whom his father Jai Ram had purchased the suit property on 1.1.1974. This suit filed by Chiranji Lal where both Sohan & Mohan were defendants is not decided as on 1.1.1980. (b) On 31.1.1980 Mohan files a suit against his brother Sohan for partition of the suit property 10-Aurangzeb Road, New Delhi (2nd suit). Partition is claimed as the father Jai Ram was the owner under a sale deed dated 1.1.1974 and that since Jai Ram died intestate Sohan & Mohan were equal co-owners by inheritance. Declaration is also sought in this suit against Chiranji Lal that Chiranji Lal is not the owner of the suit property as the sale deed in his favour was void for lack of consideration. Sohan defended this suit by pleading his exclusive ownership of the suit property on account of his having the earlier sale deed in hisfavour dated 1.1.1973. Chiranji Lal a defendant in this suit pleads his ownership of the property as per sale deed dated 31.1.1974 and prays for dismissal of the suit. (c) Sohan files on 1.3.1980 a suit for declaration of his exclusive ownership of the suit property (3rd suit) on the basis of the registered sale deed dated 1.1.1973 and in which suit both Chiranji lal & Mohan are made the defendants. The suit filed by Sohan, after evidence was led by all the parties, is decreed in favour of Sohan on 31.12.1981, holding that Sohan was the owner of the suit property although earlier suits of Mohan & Chiranji Lal were still pending. (i) Could the 3rd suit of Sohan have been decided & decreed by the Court although earlier suits of Chiranji Lal & Mohan were pending? If yes, then by reference to which provision of CPC? (ii) If an application was filed by Chiranji Lal in the 3rd suit stating that this suit of Sohan cannot proceed till his/Chiranji Lal/s suit is decided first, such an application would have been moved under which provision of CPC and how the same have been decided? (iii) What is the effect of the decision of the suit filed by Sohan on the pending suits of Chiranji Lal & Mohan? Answer: Before coming to the questions given it’s pertinent to discuss the facts in brief in order to appreciate the entire cause of events better. The problem given centres around the filing of 3 suits. The 1st suit was filed by Chiranji Lal (Plaintiff) in 1975 seeking possession of the property 10-Aurangzeb Road, New Delhi (hereinafter referred to as suit property) against brothers Mohan & Sohan (Defendant No. 1 & Defendant No. 2 ) under a sale deed dated 31.1.1974. The claim of the plaintiff is that the suit property was purchased by him from the father of the defendants who earlier purchased the same from one Om Shastri on 1.1.1974. The said plea of the plaintiff was rebutted by Defendant No.1 claiming that the said sale deed by his father in favour of the plaintiff was void for lack of consideration. Defendant No. 2 in his WS claimed that he was the owner of the suit property having purchased the same from Om Shastri vide sale deed dated 1.1.1973. This suit remain undecided as on 1.1.1980. The 2nd suit was filed by Mohan (Plaintiff) on 31.1.1980 claiming partition of the suit property against his brother Sohan (Defendant No.1). Declaration was also sought in this suit against Chiranji Lal (Defendant No.2) that he is not the owner of the suit property as alleged by him in earlier suit. Defendant No. 1 claimed exclusive ownership of the suit property basing his claim upon sale deed dated 1.1.1973. Defendant No. 2 claimed his ownership on the basis of sale deed dated 31.1.1974. The 3rd suit was filed by Sohan (Plaintiff) on 1.3.1980 for declaration of his exclusive ownership of the suit property on the basis of registered sale deed dated 1.1.1973 against Chiranji Lal & Mohan (Defendant No. 1 & Defendant No. 2). The said suit was decreed after evidence by the court on 31.12.1981 thereby holding that Sohan was the owner of the suit property, even though the earlier suits were still pending. Now, let us come directly to Q (ii) bypassing Q (i) for the time being. The only way in which Chiranji Lal could’ve challenged the filing of 3rd suit was by filing an application under Sec. 10 of CPC. It deals with the provision of Res Subjudice. The object of the rule contained in Sec. 10 is to prevent courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and same relief. The policy of the law is to confine the plaintiff to one litigation, thus obviating the possibility of two contradictory verdicts by one and the same court inn respect of the same relief. An important point to note is that the section does not bar the institution of a suit, but only bars the trial, if certain conditions are fulfilled. The subsequent suit therefore cannot be dismissed by a court, but is required to be stayed. However, the rule laid in Sec. 10 is only a rule of procedure which can be waived by a party. So if the party waive their right and proceed with the suit they afterwards cannot challenge it validity. The facts reveal that the 3rd Suit was decreed by the court after evidence was led by the parties. Chiranji Lal could’ve objected to the said suit by filing an application U/S 10. However, by failing to do so he waived his right and thus cannot challenge its outcome. Q (i) is decided accordingly As far as Q (iii) is concerned the once the decision is rendered by the court in 3rd Suit the same would operate as resjudicata and the thus accordingly Suit No. 1 filed by Chiranji Lal would be dismissed and the Suit No. 2 filed by Mohan would become infructuous.
Posted on: Sat, 20 Jul 2013 04:17:46 +0000
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