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Lakha Singh Vs. Gurdarshan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revision No. 4875 of 1997
Judge
Reported in(1998)118PLR845
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rule 10
AppellantLakha Singh
RespondentGurdarshan Singh and ors.
Appellant Advocate C.M. Munjal, Adv.
Respondent Advocate S.C. Khunger, Adv.
DispositionPetition allowed
Cases ReferredLakha Singh v. Fauja Singh and Gurdarshan Singh
Excerpt:
.....procedure adopted and provisions applicable to suits would mutatis mutandis apply to the application as well. the alleged agreement dated 31.5.1994 is certainly subsequent to the agreement in favour of the plaintiff in the suit as the present suit itself bad-been instituted as back as 2.11.1994. the plea of collusion between the plaintiff and the defendant in the suit does not prima facie appears to be correct......for impleadment as a defendant in the suit.2. the necessary facts are that lakha singh had filed a suit for specific performance and possession in regard to the land measuring 10 kanals 18 marlas as detailed in the plaint against one fauja singh. the suit was founded on the agreement to sell. during the pendency of the suit the present application was filed by gurdarshan singh on the allegations that the defendant fauja singh had entered into an agreement to sell dated 31.5.1994 in favour of the applicant had also received a sum of rs. 45,000/- as earnest money. the allegation further was that the plaintiff and the defendant in the suit are colluding with each other in order to frustrate and defeat the rights of the plaintiff in regard to the same land which happens to be subject.....
Judgment:

Swatanter Kumar, J.

1. Lakha Singh plaintiff in the suit has filed the present revision petition being aggrieved from the order passed by the learned trial Court dated 29.10.1997. Vide this impugned order the learned trial Court allowed an application filed by one Gurdarshan Singh under Order 1 Rule 10 of the Code of Civil Procedure for impleadment as a defendant in the suit.

2. The necessary facts are that Lakha Singh had filed a suit for specific performance and possession in regard to the land measuring 10 kanals 18 marlas as detailed in the plaint against one Fauja Singh. The suit was founded on the agreement to sell. During the pendency of the suit the present application was filed by Gurdarshan Singh on the allegations that the defendant Fauja Singh had entered into an agreement to sell dated 31.5.1994 in favour of the applicant had also received a sum of Rs. 45,000/- as earnest money. The allegation further was that the plaintiff and the defendant in the suit are colluding with each other in order to frustrate and defeat the rights of the plaintiff in regard to the same land which happens to be subject matter of the suit, It remains undisputed that such an application dated 20.11.1995 was filed by the applicant earlier, but was withdrawn unconditionally vide order dated 5.2.1996. said application was also for being impleaded as a party to the proceedings, but was not pressed. Thereafter the applicant has already filed a suit for specific performance and possession of the same property vide agreement dated 31.5.1994. The said suit is also pending before the same Court.

3. It is contended on behalf of the petitioner herein that the applicant has no interest in the suit property nor is a necessary or proper party for determination of any controversy arising in the present suit. He further contends that the present application is barred by the principles of resjudicata as the application earlier was withdrawn without permission to file such an application. It is also pointed out that the applicant has earlier filed an application for consolidation of the two suits which was dismissed vide order dated 15.6.1996 and appeal against the same order was also dismissed by the learned District Judge vide order dated 26.2.1997. The order dated 26.2.1997 has not been assailed and has become final and binding upon the parties.

4. From the rival contentions raised on either side it is clear that parties had been entering into multifarious litigation basically about the same subject matter. The agreement to sell does not create any interest in the property and it is also equally correct that the presence of the applicant should be necessary before the trial Court in order to do effective and complete adjudication between the parties. In support of his arguments while the learned counsel for the petitioner relied upon a judgment of this court in Civil Revision No. 3907 of 997 Jaspal Kaur v. Hazara Singh and Anr., (1988-1)118 P.L.R. 676, there the counsel for the respondents has relied upon the case of Rajinder Singh v. Jaswant Singh, 1997 P.L.J. 68.

5. There is no doubt that the judgment in the case of Rajinder Singh (supra) is of some help to the respondents herein, but basic obstruction in the way of the petitioner is that earlier such application was filed and not pressed. It is a settled principle of law that principles of resjudicata or constructive resjudicata are. equally applicable to the interim stages of the suit and to the applications filed in a suit. The provisions of Section 141 of the Code is explicit that procedure adopted and provisions applicable to suits would mutatis mutandis apply to the application as well. It is nobody's case before this Court that either the leave was sought to file such a similar application again or there is any change in circumstances from the date of the passing of the order dated 5.2.1996. It was for the applicant to take recourse to appropriate proceedings rather than to enter into multifarious litigation on all possible fronts. The applicant himself has elected to file a regular suit which is pending in the same Court. The request for consolidation has already been declined. This order of rejecting the request for consolidation was not pursued any further by the applicant. Thus, nobody else except the applicant is responsible for creating the present state of affairs.

6. Even if for the sake of arguments the Court is to consider the merits of this application, in that event the applicant does not satisfy the basic ingredients for being impleaded as a party to the suit as detailed by the Court in the case of Jaspal Kaur (supra). May be it would have been more equitable to implead the applicant as a party to the suit right at the initial stages in view of the observations of the Court in the case of Rajinder Singh (supra). But such an advantage has been frustrated by the applicant for his own doing and none but he himself is to be responsible for the results flowing therefrom.

7. The learned trial Court has really erred in not considering the effect of all the previous orders on the impleadment of the applicant as a defendant to the present suit. The basic rule that the plaintiff is dominus litus to his cause certainly has exceptions carved out to it, but these exceptions are very few and fall within a very narrow campus. The alleged agreement dated 31.5.1994 is certainly subsequent to the agreement in favour of the plaintiff in the suit as the present suit itself bad-been instituted as back as 2.11.1994. The plea of collusion between the plaintiff and the defendant in the suit does not prima facie appears to be correct. If there is conclusion between the two parties one cannot see the reason as to how the present suit is pending for the last more than three years now. The applicant has already filed an independent suit which is a comprehensive remedy. Having elected for such remedy the applicant mast be required to take such remedy to its logical end and rather than now at this stage to be permitted to be added as a defendant to a suit against an unwilling plaintiff. The plaintiff obviously takes the risk of the rights of the applicant in his suit while the applicant takes the risk of the rights of the plaintiff in the present suit.

8. The application of the applicant under Order 1 Rule 10 CPC was apparently barred by principles of resjudicata/constructive resjudicata and ought to have been rejected on this ground alone. However, I do not find that applicant was entitled to the relief claimed for even on equity. Keeping in view the previous orders and conduct of the applicant, the applicant cannot be construed as a necessary party to the present proceedings. I find that the learned trial Court has fallen in error apparent on the face of the record and the impugned order calls for interference by this Court in exercise of its revisional jurisdiction.

9. Consequently, this revision is accepted. The impugned order dated 29.10.1997 is set aside. The application of the applicant under Order 1 Rule 10 C.P.C. shall stand dismissed. However, I consider it to be in the interest of justice and while exercising powers of this Court Under Section 115 read with Section 151 of the Code to direct that both the suits titled as Lakha Singh v. Fauja Singh and Gurdarshan Singh v. Fauja Singh relating to the same land shall be dealt with and tried together by the one and the same Court. This matter be fixed for recording of evidence and arguments and be disposed of together though by separate judgments but preferably on the same day. The revision is accordingly allowed with the above observations.


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