MOHINDER PAL Vs. KEHAR SINGH

JUDGEMENT

(1.) In response to the notice issued by the High Court Mr. Baldev Singh, Advocate had appeared for respondent on 20.1.1998 in this revision. That day the matter was fixed for arguments on 23.2.1998 and thereafter the matter had been adjourned on different occasions right from 23.2.1998. Learned counsel appearing for the respondent did not appear and the matter was further deferred in the interest of justice. Despite several opportunities as nobody appeared on behalf of the respondent, the matter was heard in his absence on 20.5.1999 by this Court.

(2.) Challenge in this revision is to the order passed by the learned Civil Judge (Junior Division), Ludhiana, dated 22.11.1996. Vide the impugned order the learned Judge had dismissed the application of the present petitioner where a prayer was made for staying the proceedings in the suit pending before that Court in view of the earlier suit pending between the parties being Civil Suit No. 157 of 1993. Petitioner Mohinder Pal, defendant in the suit before the trial Court had instituted a suit in the year 1993 wherein he had challenged the validity of the agreement dated 27.2.1992. The earlier suit was filed against Kehar Singh claiming the relief that the agreement dated 27.2.1992 was forged, fabricated, null and void and was not binding on him. He had also prayed for the relief of injunction that he could not be dispossessed illegally and forcibly from the property in question in that suit. The injunction was granted in favour of Mahender Pal vide order dated 3.10.1994, while the present suit has been filed by Kehar Singh for possession by way of specific performance of the agreement dated 27.2.1992. It is contended in the present suit that Mohinder Pal had agreed to get a sale deed executed in regard to property in question on or before 26.1.1993. Parties had extended the time but as Mohinder Pal failed to do the needful, the present suit had been instituted. The learned trial Court dismissed the application by making the following observations:-

(3.) I am not quite in agreement with the observations of learned trial Court as afore-indicated. Section 10 of the Code of Civil Procedure does not postulate claim in relation to identical relief as the condition precedent for exercising powers prescribed therein. The pre dominant condition is that the matters in issue should be directly and substantially in issue as in the previously instituted suit between the same parties. There is no dispute to the fact that parties to both the suit are same, the relief claimed only interchanges in the subsequent relief. The plaintiff has claimed the relief on the basis of specific performance of the contract dated 27.2.1992 the validity of which itself is doubted as its cancellation is prayed for in the previous suit. The inevitable result would be that if Mohinder Pal succeeds in the previously instituted suit, Kehar Singh cannot succeed in the subsequent suit. The decree in one suit is bound to frustrate the decree in the other suit. There cannot be any escape from the fact that the matters which are directly and substantially in issue in the previous suit are so in the subsequent suit as well. The controversy would revolve in both the suits on the findings recorded by the Courts as to the legality, validity and alleged fabrication of the agreement dated 27.2.92 which relates to the same property subject matter in both the suits. Under the Code of Civil Procedure no provision has been made in regard to consolidation of suits. The power to consolidate suits has been vested in the Court by judicial pronouncement in various cases including the pronouncements by Hon'ble Apex Court. In other words, the power of consolidate two suits which are otherwise satisfying the ingredients prescribed under Section 10 of the Code is an ancillary power to substantive powers specifically provided under Section 10 of the Code.