H DWIJASHEKHAR SARMA Vs. H DWIJAMANI SHARMA

JUDGEMENT

(1.) IIIN'PKT I have heard Mr N, Kerani Singh, learned Sr, counsel for the Petitioner/defendant assisted by the learned counsel Mr N.Kumarjit Singh as well as Mr t. Lalitkumar Singh, learned counsel for the Opposite Party/ Plaintiff. I have also considered the records of the case.

(2.) This Civil Revision is directed against the order dated 29.8.92 passed by the learned Sub-Judge-I Manipur East at Lamphel in Judicial Misc. Case No. 13 of 1991 arising out of OS.No. 59/83/145/90. The impugned order reads as under:-

(3.) In the last but one para of the above order learned Sub-Judge observed that the Original Suit No. 59 of 1983 renumbered as 145 of 1990 was filed on 3.10.83 prior to the Original Suit No. 2 of 1986. This observation gives due to the learned counsel for the petitioner defendant to argue that the learned Sub-Judge solely on the basis of the date of the institution held that Original Suit No.2 of 1986 is not a "former suit" within the meaning of Section 11(1) C.P.C. and hence, Original Suit No. 59/83/145/90 cannot be dismissed under Section 11 C.P.C. on the ground that in Original Suit No. 2 of 1986 learned Munsiff Vide his judgment and decree dated 30.1.90 decided the same issues in respect of the same land. Learned counsel for the petitioner defendant asserts that Original Suit No.2 of 1986 is the "former suit" in as much as it had been decided on 30.1.90 prior to Original Siuit No. 59/83/145/90 although it was not instituted prior to Original Suit No. 59/83/145/90. Learned counsel submits that learned Sub- Judge misconceived the provisions of Section 11 C.P.C. by overlooking the Explanation I thereto which says "The expression former suit shall denote a suit which has been decided prior to the suit in question, whether or not it was instituted prior thereto. "However, from the reading of the impugned order, it cannot be said that the learned Subordinate Judge rejected the petition under Section 11C.P.C. on the ground that the Original Suit No.2. of 1986 is not a "former suit." Learned Sub-Judge held. "The subject matter involved in the suit is not directly and substantially in issue in the subsequent suit. Hence, the provision of Section 11 C.P.C. cannot be attracted in the suit." There is. however, another aspect which requires consideration. Admittedly, an appeal has been filed long back against the judgment and decree dated 30.1.90 passed by the learned Munsiff in Original Suit No. 2 of 1986. Learned District Judge, Manipur East, in his order dated 28.4.97 is judicial Misc. Case No. 99/90/30/94/43/96 said, inter-alia, "This appeal has been pending since 6.9.90 for one reason or another. "That being the position, learned counsel for the Opposite Party Plaintiff submits, the principle of res judieata as envisaged in Section 11 C.P.C. is not applicable in the instant case and refers to the decision in K. Muthnswami Gounder's case reported in (1998) 7 Supreme Court Cases 327 (333) wherein it has been held: