Arun Vijay Sati vs Dinesh Chandra Thapliyal And Two Others

Alok Kumar Verma, J

This Civil Revision has been preferred against the order dated 12.03.2020, passed by the learned Civil Judge (Senior Division), Pauri Garhwal in Original Suit No.01 of 2017, “Dinesh Chandra Thapliyal and Others vs. Ramesh Chandra Thapliyal and Others”, whereby the application, filed by the revisionist – defendant to dismiss the suit in view of Section 11 of the Code of Civil Procedure, 1908, has been dismissed.

Heard Mr. Arvind Vashisth, learned Senior Advocate assisted by Mr. Ajay Joshi, learned counsel holding brief of Mr. Vivek Pathak, learned counsel for the revisionist and Mr. D.S. Mehta, learned counsel for the respondent nos.1 and 2.

Admittedly, two previous suits between the parties were decided on merit by the competent court. The learned Senior Advocate submitted that the property of the present suit and the property of the Original Suit No.41 of 1992 are the same. Therefore, the present suit is barred by the principle of res judicata. On the other hand, Mr. D.S. Mehta, learned counsel for the respondents, opposed the said submissions and submitted that the property in-question of the present suit and the suit property of Original Suit No.41 of 1992 are different, because the proforma respondent no.3 - defendant had transferred eighty two square meter land to the revisionist, whereas, the share of the proforma respondent – defendant was only nineteen square meter. The learned Senior Advocate appearing for the revisionist replied that in the said Original Suit No.41 of 1992, the properties were partitioned and the proforma respondent – defendant was declared the owner of the land of eighty two square meter. The learned Senior Advocate appearing for the revisionist argued that the revisionist is purchaser and he had purchased the property in-question from the proforma respondent no.3 – Ramesh Chandra Thapliyal and according to the respondent no.3 – defendant Ramesh Chandra Thapliyal, he had transferred his share i.e. eighty two square meter land as divided in the Original Suit No.41 of 1992 and the proforma respondent – defendant was the sole owner of the land measuring 82 square meter.

During the arguments, both the learned counsel submitted that the present revision may be decided with the direction to the learned Trial Court to record the statements of the parties under Order X Rule (2) C.P.C. and if the Trial Court finds it appropriate that it is necessary to frame any additional issue, then the court may frame the additional issue.

Order X Rule 2 (1) C.P.C. applies only to the first hearing of the suit and Rule 2(2) of Order X applies to the subsequent hearing. At the stage of subsequent hearing of the suit, the Court can question to the parties of the suit regarding any material question relating to the suit. However, the examination under this rule should be made with the object of ascertaining the real matter in controversy in the suit. The jurisdiction under this rule is to be used when the court finds it necessary to obtain from any party information on any material question relating to the suit. Statements under Rule 2 are intended for clarification of pleadings and a statement recorded under (1) or (2) of Rule 2 forms part of the record under Rule 3 of Order X C.P.C.

Issues are framed for a right decision of the case. The correct decision of the civil lis largely depends on correct framing of issues. Besides the pleadings, issues may be framed from oral examination of parties or pleaders.

In view of the consent, given by the learned counsel for both the parties, this civil revision is disposed of at the admission stage with a direction to the learned Trial Court to record the statements of the parties under Order X Rule 2(2) of C.P.C. and after recording the statements of the parties, the Trial Court finds that additional issue (issues) should be framed for a right decision of the case, the Trial Court should act accordingly and decide the suit expeditiously according to law without prejudice to the impugned order dated 12.03.2020. No costs.