KASTURI LAL Vs. SUNDER SINGH

JUDGEMENT

(1.) Kasturi Lal filed a suit for possession against Mehnga Ram and others on the allegations that the defendants have encroached upon a part of property No. B-XI-S-1/32-34, situated in village Urmar Tehsil Dasuya, District Hoshiarpur, which he had purchased in public auction on the 28th of September, 1960. This suit was pending when he filed another suit against Sunder Singh and others. The evidence in the affirmative by the plaintiff had been recorded in the second suit when an application under section 10 of the Civil Procedure Code, was filed by the defendants in that suit in the Court of Sub Judge, Dasuya, making a prayer that the subject-matter of both the suit was the same and as such the second suit should be stayed. He took up that application for decision. It was submitted before him that in that suit, evidence had hen concluded and the same was fixed for arguments. In fact that suit had been received in that Court by transfer. In paragraph 4 of his order, the learned Judge mentioned that in order to find out as to whether the subject-matter in both the suits was the same as also that the parties were the same, it will be expedient to consolidate both the suits. In the order he has also mentioned that both the suits have been consolidated. Thereafter, he compared the pleadings in both the suits and perused the evidence recorded in the first suit and came to the conclusion that the subject matter in both the suits was the same. Sunder Singh, defendant No. 1, in the second suit was also a defendant in the first suit. The other defendants in the second suit was also transferees from Sunder Singh. Though in paragraph 4, he had stated that he wanted and in fact he had consolidated both the suits but in operative part of the judgment he ordered : "I, therefore, agree with the arguments of the learned counsel for the defendants that the present suit is liable to be stayed and "therefore, stay the same". The first suit was dismissed on that very day by a separate judgment. After the dismissal of the suit, Kasturi Lal filed an application that the second suit he revived and decided on merits. This application was opposed by the defendants. They contended that the second suit had been consolidated with the first suit and the same had also been dismissed on 31st of July, 1973, along with the first suit. This objection found favour with the learned trial Judge. He interpret the order dated the 31st of July, 1973, to mean that both the suits had been consolidated and both of them had been disposed of by the same judgment and both stood dismissed. The learned trial Judge dismissed the application filed by the plaintiff. Dissatisfied with this order, he has filed the present petition. No doubt, in paragraph 4 of the order dated 31st of July, 1973, the learned Sub-Judge has stated that it will he expedient to consolidate Suit No. 217 of 1971 with the second suit and that both the suits had been consolidated but this was done in order to find out as to whether the subject-matter in the second suit was the same as in the first suit and as also, as to whether the parties were the same. This clearly shows that the learned Judge inadvertently has used a wrong phrase "consolidated". What he wanted to say that the first suit should be put before him so that he could find out as to whether the parties for the cause of action were the same. The order clearly shows that vide his order dated the 31st of July, 1973, the only disposed of the application filed by the defendants. Admittedly the evidence had not been closed in the second suit. He has not discussed the evidence in that suit. He has not reached any conclusion on merits. In fact the trial in that suit had not concluded. The defendants had yet to lead evidence in that suit. The conclusion of the learned trial Judge that the second suit had also been tried along with the first suit and the same had been dismissed along with the same is not based on records. The learned Judge had been misled by the use of expression "consolidated" in paragraph 4 of the order.

(2.) Mr. M. L Sarin, the learned counsel for the respondent, has vigorously argued that the learned judge gave a finding that the subject-matter of both the suits was the same and the first suit had been dismissed. The second suit on the same cause of action cannot be allowed to go on especially when there is a finding that the subject-matter of both the suits was the same. According to him, the petitioner has not suffered any injustice by the impugned order and as such, his revisional power cannot be exercised in favour of the petitioner.

(3.) On the other hand, Mr. Amar Dutt, learned counsel for the petitioner has stated that the subject-matter of both the suits is not the same. There was no occasion for him to challenge this wrong finding by the Judge that the subject-matter of the suits was the same because he was not aggrieved by the decision given by him. This observations of the leraned Judge is against the facts. He further contended that it can be decided only during the trial of the suit whether the subject-matter of the first suit was the same.