Amarjit Singh vs Gurdev Singh

Bharat Bhushan Parsoon, J.—Invoking supervisory jurisdiction of this Court under Article 227 of the Constitution of India, order dated 13.1.2012 (Annexure P-4) passed by the lower court is under challenge whereby application of the petitioner for compliance of order of this Court of 4.2.2011 in letter and spirit by the lower court, was dismissed.

Hearing has been provided to the counsel for the petitioner while going through the paper book.

A suit for declaration, inter alia, to the effect that the plaintiffs are owners in possession of 1/4th share of the land measuring 233 Kanals 5 Marlas and that the defendant was never given right of ownership vide Will dated 3.10.1960, was pending adjudication before the lower court.

This suit was preferred on 2.6.1992 by the petitioner-plaintiff against one Smt. Nand Kaur (now deceased). She had appeared on 26.8.1992. An injunction order was passed restraining her from alienating the land in dispute during pendency of the suit. After her death, her legal heirs were impleaded by the Court on 9.6.1993. Legal heirs of deceased Smt. Nand Kaur had effected compromise with the plaintiff on 21.5.1994. The matter was adjourned to 1.6.1994.

In the meanwhile, Gurdev Singh and Harbans Singh had also moved an application under Order XXII Rule 10 CPC on 1.6.1994. This application was dismissed on 29.7.1994. The suit was decreed on the basis of compromise dated 21.5.1994.

Applicants Gurdev Singh and Harbans Singh filed an appeal against the order of dismissal of their application. It was dismissed.

Said applicants Gurdev Singh and Harbans Singh filed a revision petition in this Court. Order of 1st Appellate Court of 8.12.1995 whereby judgment of the lower court decreeing the suit of the plaintiff was affirmed, had also been challenged in the Regular Second Appeal before this Court.

Vide order of 4.2.2011 this Court allowed the revision petition as well as the Regular Second Appeal. The case had been remanded to the lower court for deciding the suit afresh from the stage, applicants Gurdev Singh and Harbans Singh had filed application under Order XXII Rule 10 CPC.

In compliance with orders of 4.2.2011 of this Court, the lower court proceeded further and gave opportunity to the plaintiff to lead evidence. Applicants Gurdev Singh and Harbans Singh thereafter were also given opportunity to produce their evidence. It was at this stage that an application was moved by the petitioner-plaintiff for passing decree in his favour on the basis of the compromise of 21.5.1994 which in effect would mean that the plaintiff wanted a decree on the basis of compromise arrived at by him with Smt. Harbir Kaur and Smt. Amarjit Kaur i.e. his mother and sister without considering the claim of Harbans Singh and Gurdev Singh brought on record in terms of Order XXII Rule 10 CPC.

After emergence of these two applicants on the scene, vide order of 4.2.2011, such decree on the basis of said compromise of 21.5.1994 passed by the lower court in favour of the petitioner-plaintiff, has already been set aside by this Court.

When decree based on compromise passed by the lower court on 29.7.1994 affirmed by the Appellate Court on 8.12.1995 has already been set aside by this Court on 4.2.2011 in Regular Second Appeal, when revision petition of Gurdev Singh and Harbans Singh has also been allowed reversing order of rejection of their application under Order XXII Rule 10 CPC, the lower court could not have ignored presence of Gurdev Singh and Harbans Singh and could not have passed the decree on the basis of compromise arrived at by the plaintiff with his mother and sister viz. Smt. Harbir Kaur and Smt. Amarjit Kaur. Gurdev Singh and Harbans Singh, who have been brought on record in terms of their application under Order XXII Rule 10 CPC are the main stakeholders as the decree suffered by Smt. Nand Kaur was against their interest.

It is further important to note that after remand of the case by this Court on 4.2.2011, the petitioner-plaintiff has already produced his evidence and it was only on closure of evidence by him, that the defendants were given opportunity to produce their evidence. One witness produced by them has already been partly examined.

In these circumstances, the lower court was right in dismissing application of the petitioner-plaintiff as the course wanted by him to be adopted by the lower court was not in terms of the orders of this Court. When proceedings in the main case were going on in terms of orders of this Court of 4.2.2011, the application moved by the petitioner-plaintiff was nothing but mis-user of the process of the court which resulted in unnecessary withholding of the proceedings before the lower court.

Keeping in view the entirety of the matter, when there is no factual or legal flaw in the impugned order (Annexure P-4), the same is hereby affirmed and the petition being without any merit and being misuser of the process of courts is dismissed with costs of Rs. 5,000/-.

Observations made hereinabove shall have no bearing on the merits of the suit pending before the lower court.