Mahesh Grover, J. - (1.) THE petitioners impugn the order dated 25.10.2012 vide which their application under Order 1 Rule 10 was declined.
(2.) THE facts of the case as disclosed to the Court would indicate repeated sales of a property belonging to the petitioners. The first sale deed was allegedly executed by one Nasib Kaur, the power of attorney holder on behalf of the original owner of the land i.e. respondent no. 1 herein, which stood cancelled. Subsequent sales were thereafter made by the different vendees and out of which sale was in favour of the petitioners on 10.7.2006. Respondent no. 1 filed a suit for declaration and joint possession against Gurmail Kaur, Avtar Singh and Surjit Kaur who were the vendors of the petitioner and had sale deeds in their favour dated 29.6.1994 and 1.7.1994. The petitioner filed an application under Order 1 Rule 10 in the suit initiated by respondent no. 1 on 9.6.2010 which was dismissed in default on 5.1.2011. Instead of seeking revival of the proceedings, another application of the like nature was moved which was also dismissed in default on 3.5.2011. The petitioner then moved a third application on the same facts and with same prayer which was declined by the Court below by resorting to two reasonings: - i) that the matter under Order 1 Rule 10 stood concluded and the third application is hit by principle of res judicata. ii) That sale is hit by principle of lis pendens.
(3.) AFTER hearing learned counsel for the parties, I am of the considered opinion that there is no infirmity in the impugned order. Even though the first part of the reasoning that the proceedings are hit by principle of res judicata may not be strictly correct but in so far as subsequent part of the order is concerned, the same is justified. Two applications stood dismissed in default and this reflects on the conduct of the petitioner. In an adversarial litigation dismissal of such application would result in accrual of a right to the other side which should not be taken away by a misplaced sense of sympathy with the defaulter. The respondent no. 1 filed a suit in 2004 against the defendants and the sale having been made in the year 2006 would clearly attract the principle of lis pendens also.;