Remanded

Umesh Lalung and Anr. v. Md. Nekbar Ali

Gauhati HC1 Feb 2021CRP/307/2015

Case brief

AI extract

What is this about?

High Court set aside impugned order staying proceedings in T.S. No. 76/2014. Exercising inherent jurisdiction under Article 227, Court directed both suits to be tried analogously by the same court to prevent contradictory decrees regarding specific performance and title declaration.

What did the court decide?

Impugned order stayed and set aside; both suits directed to be tried by the same Court; T.S. No. 8/2014 transferred to learned Munsiff No. 2.

Umesh Lalung and Anr. Vs Md. Nekbar Ali — Contract and Commercial Disputes | Gauhati HC (2021)

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Page No.# 1/4

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GAHC010235452016

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP(I/O)/50/2016

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RAMESH LALUNG @ UMESH LALUNG and ANR. S/O LT. GAKUL LALUNG @ BAKUL LALUNG

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2: GUDAMI LAUNG D/O LT. GAKUL LALUNG @ BAKUL LALUNG BOTH ARE R/O SARUWATI SALMARI P.S. DHARAMTUL DIST- MORIGAON ASSA

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VERSUS

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MD. NEKBAR ALI S/O LT. ABDUL SUVAN, R/O DHUPGURI, P.S. LAHARIGHAT, DISTMORIGAON, ASSAM

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Advocate for the Petitioner : MS.J GOGOI

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Advocate for the Respondent :

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Linked Case : CRP/307/2015

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UMESH LALUNG and ANR S/O- LT. BAKUL LALUNG.

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2: GUDAMAI LALUNG D/O- LT. BAKUL LALUNG BOTH R/O VILL.- SOLMARI SAMATI

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Page No.# 2/4

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P.O. and P.S.- DHARAMTUL DIST.- MORIGAON ASSAM. VERSUS

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MD. NEKBAR ALI S/O- LT. ABDUL SAVAN R/O VILL.- DHUPGURI P.O. and P.S.- LAHARIGHAT DIST.- MORIGAON ASSAM.

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-----------Advocate for : MR.U BHATTACHARYA Advocate for : MS.R GOGOI appearing for MD. NEKBAR ALI

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 01-02-2021

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Heard Mr. D.C.C. Phukan, learned counsel for the petitioner as well as Mr. P.J. Saikia, learned counsel for the respondent.

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By this application under Article 227 of the Constitution of India, the petitioners have assailed the order dated 27.05.2015 passed by the learned Munsiff No.2, Morigaon in T.S. No.76/2014, thereby exercising jurisdiction under section 10 CPC to stay the proceeding of T.S. No.76/2014 pending before the said learned Court on the ground of pendency of previously instituted T.S. 8/2014 for the same suit land involved in T.S. No.76/2014, and because both suits were between the same parties.

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The petitioners herein are the plaintiffs in T.S. No.76/2014 wherein the respondent is the sole defendant. The said suit and is now pending before the Court of learned Munsiff No.2, Morigaon. The respondent herein is the plaintiff in T.S. No.8/2014 which is pending before Court of learned Civil Judge, Morigaon and the petitioners herein are the defendants. The said T.S. No.8/2014 is for seeking a decree for specific performance of contract in respect of the suit land, for registration of sale deed and for confirmation of possession of the respondent over the suit land. Whereas, the prayer in T.S.

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Page No.# 3/4

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No.76/2014 is for decree for declaration of the right, title and interest of the petitioners over the suit land, for recovery of khas possession, and for declaration that the deed dated 16.05.2014 between Md. Nekbar Ali, respondent and one Ramesh Bordoloi is null and void.

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The learned counsel for both sides have made their submissions in support of their stand.

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Having regard to the nature of the prayer made in both the suits, it is seen that in T.S. No.8/2014, the respondent herein is seeking a decree to direct the petitioners to execute the registered sale deed for the sale of land described in the schedule of the plaint. Therefore, the Court is of the considered opinion that unless the proceeding of T.S. No.76/2014 is decided so as to declare the right, title and interest in favour of the petitioners. It is inconceivable that without first declaring title, there is any way that a lawful and valid sale deed for suit land can be executed and registered. Therefore, unless T.S. No.76/2014 is allowed to proceed, no effective decree can be passed in the T.S. No.8/2014.

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It appears that this is a case where both the suits be allowed to proceed analogously. However, if the two suits are permitted to be adjudicated separately, there is a chance that an anomalous situation may arise because the trial Court may pass a decree for specific performance of contract in T.S. No.8/2014, thereby decreeing the suit for specific performance and issuing a decree to the petitioners to execute a registered sale deed. But if the trial Court dismisses T.S. 76/2014, and refuses to declare right, title and interest in favour of the petitioners herein, the decree passed in T.S. No.8/2014 would be rendered inexecutable. Therefore, in order to avoid conflicting decree in both the suits, the Court is inclined to invoke inherent jurisdiction of the Court and to direct that the both the suits shall be tried by the same Court.

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In view of such situation, the Court is of the considered opinion that the impugned order dated 27.05.2015 passed by the learned Munsiff No.2, Morigaon in T.S. No.76/2014 is vitiated by jurisdictional error and the same is set aside and quashed. Resultantly, both the suits are ordered to proceed analogously as herein indicated. The proceeding of T.S. No.76/2014 would be tried by the Court of learned Munsiff No.1, Morigaon and in view of enlargement of pecuniary jurisdiction of Court of Munsiff, the proceeding of T.S. no.8/2014 is ordered to be transferred to the Court of learned Munsiff No.2 for analogous trial with T.S. 76/2014.

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This application stands disposed of.

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Both sides are directed to appear before the learned Munsiff No.2, Morigaon on 22.02.2021. The petitioner shall produce a certified copy of this order before the learned Civil Judge, Morigaon so as to enable the learned Court to transfer the record of T.S. No.8/2014 to the Court of learned Munsiff

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Page No.# 4/4

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No.2, Morigaon for being analogously tried with T.S. No.76/2014, pending before the said learned Court.

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JUDGE

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Comparing Assistant

Umesh Lalung and Anr. v. Md. Nekbar Ali

Case brief

What is this about?

What did the court decide?

Umesh Lalung and Anr. v. Md. Nekbar Ali

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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