Civil Revision challenging an order restricting cross-examination of a witness because the issue of agreement to sell validity was already adjudicated. Dismissed常规的 revision. Bench also strongly criticized procedural delays in the subordinate court during revival of suit and directed Judges to furnish a list of cases adjourned sine die.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Civil Revision No. 2451 of 2012 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Civil Revision No. 2451 of 2012 (O&M) Date of decision: 21.5.2012
Pritam Kaur
.. Petitioner
v.
Sarabjit Kaur and another
.. Respondents
CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL
Present: Mr. Piyush Kant Jain, Advocate for the petitioner.
Rajesh Bindal J.
Defendant No. 1 has filed the present petition in this court challenging the order dated 25.1.2012, passed by the learned court below, whereby she was restrained from cross-examining the plaintiff-respondent No. 1 and other witnesses on the question of legality and validity of the agreement to sell, as the issue had already been decided in earlier litigation between the parties.
The case in hand has a checkered history. The present proceedings arise out of a civil suit filed by respondent No. 1- plaintiff on 17.10.1995 for possession by way of specific performance of agreement to sell dated 9.12.1992. After notice, the parties had put in appearance. The issues were framed on 6.11.1996. When the case was at the stage of plaintiff's evidence, application was filed by the petitioner on 16.11.1999 under Section 10 CPC for stay of the suit. The same was decided by the learned court below on 23.9.2000, whereby the suit was adjourned sine die and ordered to be consigned to record room and to be re-called as and when ordered by the court. The application was filed by the petitioner with the
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plea that she had filed a suit earlier on 6.3.1993 for declaration to the effect that she is the owner in possession of the property in dispute and further permanent injunction was sought restraining the defendants therein from effecting transfer in any manner or alienation of the property to any one and further for mandatory injunction directing defendant No. 3 therein (respondent No. 1 herein) for handing over possession of the suit property to the petitioner. The learned court below having found that issues in both the suits were substantially similar, the proceedings were adjourned sine die.
The suit filed by the petitioner was dismissed by the trial court on 16.10.2003. First appeal was dismissed by the learned lower appellate court on 11.9.2004 and subsequent thereto, even Regular Second Appeal No. 600 of 2005 filed by the petitioner before this court was also dismissed on 20.1.2006.
On 28.10.2003, respondent No. 1- plaintiff filed application for revival of the proceedings in the suit, which was adjourned sine die on 23.9.2000, in which though the petitioner, who was defendant No. 1 was represented after service, whereas defendant No. 2- Improvement Trust, Ludhiana was proceeded against ex-parte . To the application, reply was filed by the petitioner on 11.5.2005 stating that the application is not maintainable as the appeal filed by the petitioner was still pending before this court for 23.9.2005. After no objection was given by learned counsel for the petitioner on 12.8.2009, the proceedings in the suit were directed to be revived and the case was fixed for evidence of respondent No. 1- plaintiff. Only one PW was examined. When he was sought to be crossexamined on the issue regarding validity of the agreement to sell, counsel for respondent No. 1 raised an objection claiming that the issue regarding validity of the agreement to sell had already been gone into in other litigation between the parties, hence, the same cannot be raised again. By the impugned order, the learned court below sustained the objection raised by learned counsel for respondent No. 1-plaintiff and permitted the petitioner to cross-examine the plaintiff and other witnesses to be produced by her only to the extent of readiness and willingness for performance of her
Civil Revision No. 2451 of 2012 [3]
part of the agreement as the legality and validity of the agreement to sell had already been gone into between the parties in the earlier litigation. It is against this order that the petitioner is before this court.
A subsequent fact, as is evident from the file of the court below, is that thereafter the case was pending for recording evidence of the plaintiff when an application was filed by the petitioner under Order 7 Rule 11 CPC on 15.3.2012 for rejection of the plaint on the ground that the suit is defective being without any cause of action. The application was dismissed on 8.5.2012.
Learned counsel for the petitioner submitted that approach of the learned court below in declining the petitioner an opportunity to crossexamine the plaintiff or other witnesses to be produced by her is totally erroneous. The other suit was filed by the petitioner only for declaration that she is the owner in possession of the property. Merely because there was passing reference to the agreement to sell dated 9.12.1992, which is subjectmatter of the present suit, any observation made by the court therein cannot be considered to be final finding on the issue of validity of the agreement to sell. There was no issue framed in the suit filed by the petitioner regarding the validity and genuineness of the agreement to sell. It cannot be considered as res judicata between the parties as a finding recorded by the court on a specific issue can only be referred to in support of the plea of res judicata in case in a subsequent suit, an identical issue is sought to be raised by the parties. As in the earlier litigation, no issue regarding the agreement to sell being valid was claimed or framed by the court, any expression of opinion cannot be termed as res judicata. In case it is not res judicata, the same can be raised in the present suit and the petitioner cannot be denied the right to cross-examine the plaintiff or her witnesses on that issue. In support of his plea, reliance was placed upon Surinder Mohan Rai v. Onkar Nath, (1990-2) PLR 485 (P&H) and Kalyan Singh Chouhan v. C. P. Joshi, 2011(2) Civil Court Cases 001 (SC).
Heard learned counsel for the petitioner and perused the paper book as well as the record summoned from the court below.
There are two aspects in the matter in dispute – one is
Civil Revision No. 2451 of 2012 [4]
controversy on merits, whereas another important aspect is the procedure adopted by the court in dealing with the case.
As far as the merits of the controversy is concerned, before this court proceeds to record a finding thereon, it would be relevant to refer to the pleadings and the findings recorded by the court in the earlier suit filed by the petitioner. The same are reproduced as under:
“Pleadings in the plaint
xx xx xx
Suit for declaration to the effect that the plaintiff is the owner in possession of property comprised in property Unit No. 145D shown red in the plan attached and bounded as under:
East: Road
West: Kothi No. 162-D of Hardip Singh North: Plot No. 146-D
South: Kothi No. 144-D
situated in Bhai Randhir Singh Nagar, Ludhiana and suit for the grant of permanent injunction restraining the defendants from effecting the transfer in any manner or alienation of the property to any one through defendant No. 4 and restraining defendant No. 4 from permitting the transfer or alienation and restraining the defendants from causing illegal and forcible dispossession of the plaintiff from the property in suit on the basis of oral and documentary evidence.
xx xx xx
xx xx xx
Civil Revision No. 2451 of 2012 [5]
know about the fabrication of the documents by defendants No. 1 to 3 the plaintiff approached all the defendants and told them not to act on any such fabrication basis as they i.e. defendants No. 1 to 3 had absolutely no legal right, title or interest to deal with the property and that it is the plaintiff alone who is the legal owner in possession of the property possessing all the legal rights to manage the same. The attorney given if any stood revoked with the oral information provided by the plaintiff to the defendants.
xx xx xx
The stand of the petitioner in the suit filed by her was contested by respondent No. 1 by filing written statement claiming that the property in dispute was sold by the petitioner to respondent No. 1 by way of an agreement to sell dated 9.12.1992. The entire sale consideration was paid and in part performance of agreement to sell, even possession of the property was also handed over to her. Signing of any blank papers was
Civil Revision No. 2451 of 2012 [6]
denied.
The learned trial court framed following issues in the aforesaid
suit:
Issues No. 3 and 4 are relevant and in fact deal with the stand of the petitioner, which is sought to be raised now in the present suit. While dealing with issue No. 4, the learned trial court recorded a definite finding in para No. 14 of the judgment to the effect that the stand being taken by the petitioner that the documents were got blank signed from her is totally incorrect and so is the plea of fraud and misrepresentation taken by her. Her conduct in not coming to the court with clean hands was also deprecated. Paragraph 14 of the judgment is extracted below:
“14. I have carefully considered the respective submissions. It is the case of plaintiff that her signatures were obtained by fraud and misrepresentation, but she admits her signatures on the documents. It is requirement of law u/s 6 rule 4 CPC that whenever a person takes plea of fraud and misrepresentation, then it is a legal requirement that particulars of such fraud or misrepresentation must be given in the pleadings and are required to be proved. This view was taken in case Someshwar Nath Bhargava vs. Smt. Kusum Kumari, 1993-CCC-18 by Hon'ble Allahabad High Court. In this case, plaintiff has not
Civil Revision No. 2451 of 2012 [7]
given any particulars of fraud or misrepresentation rather, she has not been able to make out case that defendants were on visiting terms with her in respect of a dispute with her son. The act and conduct of plaintiff also suggests that she is not coming to court with clean hands. Her denial of giving power of attorney to Sukhminder Singh Mangat stands belied when she herself got power of attorney cancelled by way of a registered document and clearly mentioned in that document that she had earlier given power of attorney to Sukhminder Singh Mangat. So, in these circumstances, it becomes clear that plaintiff had handed over the possession of the house in dispute of her own to defendant No. 3 and she had also entered into an agreement to sell with defendant-Sarabjit Kaur. In support of her pleadings that her articles were forcibly thrown out by defendants No. 1 to 3 is also not believable as no one from the thickly populated area came to rescue the plaintiff rather, she quietly took away her articles to a room of gurudwara and resided there for some days. This act of the plaintiff is also very doubtful. Therefore, it is clear that plaintiff has no case at all rather, in her cross-examination she has admitted her signatures on the receipt of receiving money, copy of which is Ex. P1 and agreement is Ex. P2. So, nothing remains more to be discussed on the subject. Issue No. 4 is accordingly decided against the plaintiff.”
While dealing with issue No. 3 regarding plea of possession in part performance of agreement to sell, reference was made to affidavit Ex. D3 of the petitioner (plaintiff therein) in which she admitted that after receipt of the entire amount, she had given possession of the suit property. Specific finding has been recorded in paragraph 22 of the judgment dated 16.10.2003, which is extracted below:
“22. I have carefully considered such submissions. In view of discussion held on issue No. 4, it is amply proved that possession was handed over by plaintiff of her own to
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defendants. She cannot wriggle out from her affidavit Ex. D3 and she has admitted her signatures on the said document. Similarly, she has also admitted her signatures on power of attorney Ex. D. 2 and the document of cancellation of power of attorney in favour of Sukhminder Singh Mangat which is Ex. D. 4. Perusal of these documents goes to show that stamp papers were purchased together as serial number of stamp papers is 8840 to 42 dated 9.12.1992. Hence, affidavit of plaintiff can be safely relied upon to hold that possession was given voluntarily by her. So, issue No. 3 is held in favour of defendants.”
The appeal was filed by the petitioner against the judgment and decree of the trial court dated 16.10.2003. On re-appraisal of evidence, the learned lower appellate court recorded that the petitioner had received entire sale consideration as per the recital in the agreement to sell and had, in fact, even handed over the possession of the property to respondent No. 1. The plea that the documents are forged and fabricated was rejected as the petitioner in her cross-examination had herself admitted her signatures on the documents executed by her. The findings recorded by the learned trial court were upheld by the learned lower appellate court. Regular Second Appeal No. 600 of 2005 filed by the petitioner before this court was also dismissed on 20.1.2006 with the following observations:
“The unsuccessful plaintiff-appellant has made an attempt to challenge the concurrent findings of fact recorded by both the courts below holding that no fraud or misrepresentation has been proved by her on the part of the defendant-respondents in cancelling the power of attorney by way of a registered document. It has further been found that she herself had handed over the possession of the house in dispute to the defendant-respondents and had also entered into an agreement to sell with defendant-respondent No. 3 Sarabjit Kaur. The version that she was forcibly thrown out of the house by defendant-respondents 1 to 3 has also not been accepted,
Civil Revision No. 2451 of 2012 [9]
especially when she has admitted her signatures on the receipt Ex. P-1, which shows acknowledgement of the fact of receiving money, and on the agreement Ex. P-2.
No question of law has been raised which may warrant admission of the appeal. Both the courts below have appreciated the evidence in the correct perspective holding that the defendant-respondents are bona fide purchaser for a valuable consideration and there is no fraud or misrepresentation played on the plaintiff-appellant by anyone. The appeal is wholly without merit.”
The order passed by this court in the aforesaid appeal attained finality as nothing has been pointed out by counsel for the petitioner that any further remedy was availed of against the aforesaid order.
Now coming to the present suit filed by respondent No. 1- plaintiff. The prayer therein is for possession by way of specific performance of agreement to sell dated 9.12.1992. The pleadings are identical, namely, that the agreement to sell was executed for a total sale consideration of ` 3,85,000/-. As the entire amount was paid to the petitioner, the possession of the house in question was also delivered to respondent No. 1-plaintiff. In the written statement filed by the petitioner, she denied execution of agreement to sell or receipt of the sale consideration or even delivery of possession to respondent No. 1-plaintiff in part performance of agreement to sell.
The contention sought to be raised by learned counsel for the petitioner was that issues in both the suits were different, hence, the petitioner could not be denied the right to cross-examine the plaintiff or other witnesses produced by her. However, a perusal of the pleadings and the findings recorded by the trial court, first appellate court and even this court, while upholding the judgment and decree of the trial court in the earlier suit filed by the petitioner, shows that the contention raised is totally misconceived. A specific finding has been recorded to the effect that agreement to sell is genuine and further on payment of entire sale consideration in part performance thereof, the possession of the property in
Civil Revision No. 2451 of 2012 [10]
dispute was also handed over to respondent No. 1-plaintiff (vendee) by the petitioner (vendor).
More so, even the petitioner also knew about this fact when she filed application under Section 10 CPC for stay of suit. It has been specifically pleaded by the petitioner in the application that she had previously filed a suit for declaration claiming that she never agreed to sell or alienate the property in dispute to respondent No. 1 and the documents of transfer in her favour are false/frivolous/fabricated. As the issue in both the suits is pertaining to the agreement to sell being false and fabricated, the proceedings in subsequent suit deserve to be stayed. Though the prayer made by the petitioner was contested by respondent No. 1, however, the learned trial court finding merit in the submissions made by the petitioner had stayed the proceedings in the present suit vide order dated 23.9.2000. However, now the petitioner is trying to take a somersault in her stand when findings have been recorded against her in the earlier litigation which have been upheld upto this court, in a way she is trying to blow hot and cold at the same breath.
Considering the aforesaid facts, in my opinion, no illegality has been committed by the learned court below in declining the petitioner opportunity to cross-examine respondent No. 1-plaintiff or the witnesses to be produced by her as the issue had already been gone into earlier litigation between the parties and the same cannot be permitted to be reopened.
In view of my aforesaid discussion, I do not find any merit in the present petition. Accordingly, the same is dismissed.
Now coming to the issue regarding the manner in which the case has been proceeded with, certain facts are required to be noticed. The suit in the present case was filed on 17.10.1995. After service of the defendants, the issues were framed on 6.11.1996. The case, thereafter, was adjourned on many occasions for evidence of the plaintiff, however, no evidence was led.
On 16.11.1999, application under Section 10 CPC was filed by the petitioner-defendant No. 1 for stay of suit, which was allowed on 23.9.2000 directing the case to be adjourned sine die and the file to be
Civil Revision No. 2451 of 2012 [11]
consigned to record room and to be re-called as and when ordered by the court.
The important fact to be noticed here is that though the petitioner claimed that in the suit filed by her, which was prior in time, having been filed on 6.3.1993, the issues were substantially the same, but still the application for stay of suit was not filed immediately after her service or even after the issues were framed on 6.11.1996, rather, was filed three years later.
The suit filed by the petitioner was dismissed by the trial court on 16.10.2003. Even appeal filed by the petitioner before the lower appellate court was also dismissed on 11.9.2004, but still when the application for revival of the suit was filed by respondent No. 1-plaintiff on 28.10.2003, the case was directed to be put up on 10.11.2003 with Ahlmad to report. On the next date, report of the Ahlmad was perused and notice was directed to be issued to the opposite party. The original file was also summoned. Service of the petitioner-defendant No. 1 could be completed only on 25.11.2004 when a counsel appeared on her behalf. Thereafter, the case remained pending for service of defendant No. 2 in the suit, which was directed to be proceeded against ex-parte on 1.4.2005, as despite service none appeared on its behalf.
Once the parties were represented and the proceedings in the suit had been adjourned sine die due to pendency of another litigation with identical issue, the parties were not required to be summoned again as the notice could have been issued only to the counsel for the parties. It could have avoided delay of about 17 months.
Thereafter, the petitioner filed reply to the application on 11.5.2005. However, the application remained pending till 2.3.2006 as the original file had not been received. It was only on 2.3.2006 that the court recorded that the original file had been received and the case thereafter was adjourned for consideration. It may be noticed that it took two years and four months for summoning of file from the record room, which may be located in the same complex. It is nothing else but casualness.
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On that day, the stand taken by the petitioner in reply to the application for revival of the suit filed on 11.5.2005, was that Regular Second Appeal filed by the petitioner against the judgments and decree of the court below was pending before this court. In fact that the same stood dismissed on 20.1.2006, it was never brought to the notice of the court, when the case was taken up on 2.3.2006 as on that very day when the original file was received, the proceedings in the suit would have commenced. Even counsel for respondent No. 1-plaintiff also did not take care to enquire about the status of the appeal allegedly filed by he petitioner before this court and to apprise the court about the status thereof, as if every one was interested in adjournment only.
From 2.3.2006 onwards, the case was adjourned on 24 occasions, when ultimately on 12.8.2009, counsel for the petitionerdefendant No. 1 stated before the court that he had no objection if the proceedings in the main suit are revived. It was more than three years and six months after the dismissal of Regular Second Appeal filed by the petitioner before this court. This delay was avoidable.
The system of adjoining cases sine die on account of pendency of some proceedings in the trial court itself or in higher courts is being followed in all the courts. It is also seen that the cases are not revived immediately when the proceedings on account of which the case was adjourned sine die, are over.
The District & Sessions Judges in the States of Punjab and Haryana and Union Territory, Chandigarh be asked to furnish list of all the cases in the district which have been adjourned sine die and the reason therefor. The information be furnished before the next date of hearing.
Adjourned to 6.8.2012.
( Rajesh Bindal ) Judge
21.5.2012 mk
3 issues framed by the court
Whether High Court could uphold refusal to allow petitioner to cross-examine witnesses regarding validity of agreement to sell already decided in earlier litigation.
Whether petitioner's denial of the agreement to sell constitutes res judicata given prior findings upheld by this Court.
Whether lower court erred in adjourning suit sine die for an extended period and failing to revive it promptly after antecedent appeal was dismissed.
Pritam Kaur
Sarabjit Kaur
Rajesh Bindal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
