Full Text
A-ll
% 20.7.2011
Present: Mr. S.S. Panwar, Advocate for the petitioner with petitioner in person.
Mr. B.S. Kharb, Advocate for R-1 to 3 & 6.
+CM (M) No. 541/2010 & CM No. 7306/2010 (stay)
*
The order impugned before this court is the order dated
08.01.2010 vide which on an apphcation filed by the defendant under Order 7 Rule 11 of the Code of Civil Procedure (CPC) an order was passed staying the second suit which had been filed by the plaintiff. Admittedly, no apphcation under Section 10 of the
CPC was filed before the concerned court; orders had been passed suo motu staying the second suit.
The first suit i.e. Suit No. 141/2008 had been filed by the plaintiff/Laxmi Narain; this was a suit for declaration and permanent injunction; there were six defendants; the prayer was that the sale deed dated 18.03.1955 executed by Prabhu Dayal, father of the plaintiff be declared null and void; contention of the plaintiff being that his father had in fact not sold his share in the disputed land.
The second suit which had been filed by the plaintiff was Suit
No. 135/2009; this was suit filed by the plaintiff against the aforenoted six defendants; it was a suit for declaration and permanent injunction; relief claimed in terms of the prayer clause
2011:DHC:7762
W' was that the decree dated 13.07.1970 passed in Suit No. 446/1970 titled as Jai Bhagwan vs. Sis Ram &Ors was a collusive decree; the said decree be declared null and void. The contention of the petitioner was that the brother of the petitioner in collusion with the other defendants had obtained the aforenoted decree whereby he had got a share in the disputed land which was the subject matter of the first suit wherein the plaintiff had prayed that the sale deed dated 18.03.1955 be set aside as the father of the plaintiff had not sold his share in the suit property. The further contention ofthe plaintiff is that this decree dated 13.07.1970 was non-est for the reason that a decree for declaration of agricultural land could not have been passed in view of the law laid down by
Supreme Court in Matti vs. SunderSinoh ATR 1971 SC2320.
These submissions have been countered.
Record shows that the impugned order suffers from a patent illegality. There was admittedly no application before the court
^ under Section 10 of the Code; there was no occasion to deal with. these contentions as have been dealt with in the impugned order.
The apphcation before the court in which pleadings were complete and which had to be decided by the court (by the impugned order) was the application under Order 7 Rule 11 of the Code. The Apex
Court has time and again chided the Courts for transgressing from their courts and travelling beyond them. There is a specific provision in the Code which is contained in Section 10 of the Code wherein an aggrieved party can seek a stay of the second suit if there is an earher suit pending provided the necessary ingredients ofSection 10 ofthe Code are satisfied. There was no such pleading before the Court. Exercise ofthis powersuo motu was uncalled for.
The Apex Court in AW 1962 SC 527 has made following observations which are relevant:-
"(43) The Code of Civil Procedure is undoubtedly not exhaustive: it does not lay down rules for guidance in respect of all situations nor does it seek to provide rules for decision of all conceivable cases which may arise. The civil courts are authorised to pass such orders as maybe necessaryfor the ends ofjustice, or to prevent abuse of the process of court, but where an expressprovision is made tomeeta particularsituation the Code must be observed, and departure therefrom is not permissible. As observed in 62 Ind App 80: (AIR
JUDGMENT
1935 PC 85): "it is impossible to hold that in a matter which is governed by an Act, which in some limited respects gives the court a statutory discretion, there can be implied in court, outside the limits ofthe Act a general discretion to dispense with the provisions ofthe Act Inherent jurisdiction of the court to make orders ex debitojustitiaeis undoubtedly affirmed by S. 151 of the Code, but thatjurisdiction cannot be exercised so as to nullify the provisions of the Code. Where the Code deals expressly with a particular matter, the provision should normallybe regarded as exhaustive." Counsel for the petitioner has pointed that even otherwise the appUcability of Section 10 of the Code was excluded as the jurisdiction ofthe two courts was totally different. The first suit i.e. Suit No. 141/2008 was being tried by the Additional District Judge whereas the second suit i.e. Suit No. 135/2009 was being tried by the Civil Judge. Impugned order suffers from an illegality which requires to be corrected. It is accordingly set aside. Both the suits be tried in the respective courts in which they are pending for 02.08.2011. With these directions, the petition is disposed of. Record be returned. INDERMEET KAUR, J. JULY 20, 2011 rb
JUDGMENT