Point of Law: Power conferred on Courts under Rule 3 of Order 17 of CPC to decide suit on merits for default of a party is a drastic power which seriously restricts remedy of unsuccessful party for redress.

JUDGMENT :

Sandeep Sharma, J.

Instant petition filed under Article 227 of the Constitution of India, lays challenge to order dated 5.3.2020 (Annexure P-L Colly.) passed by the learned Senior Civil Judge, Shimla in CS No. 31 of 2003 (now numbered as 185-1 of 15/2003), whereby court below held that since no findings on merit have been recorded by the court in former suit bearing CS No. 41 of 1997 and same has been dismissed in default, latter suit i.e. CS No. 31 of 2003 is to continue.

2. For having bird’s eye view, facts, relevant for adjudication of the case are that, person namely Parveer Singh (plaintiff in earlier CS No. 41 of 1997) filed civil suit bearing CS No. 41 of 1997 in the High Court of Himachal Pradesh, claiming that “Knollwsood” is HUF property and therefore, he is entitled to share as a coparcener. In the aforesaid suit, he arrayed his father namely Sardar Govinder Singh as defendant No.2. While aforesaid suit was pending adjudication in the High Court of Himachal Pradesh, above named Govinder Singh, filed CS No. 31 of 2003 (Annexure P-A), claiming similar relief as was claimed by his son Pravir Singh in CS No. 41 of 1997. In the aforesaid suit, learned Single Judge of this Court on the basis of pleadings adduced on record by the respective parties, framed as many as 12 issues, but specifically framed issue No.8, which reads as under:

“8. Whether the present suit is liable to be stayed on account of pendency of the previously instituted Civil Suit No. 41 of 1997 titled S. Pravir Singh v. S. Tejinder Singh and others in the High Court of H.P. and Civil Suit 973 of 1994 pending in the High Court of Delhi, as alleged? OPD.”

3. Vide order dated 2.1.2007, learned Single Judge of this Court decided the aforesaid issue against the petitioner-defendant Sardar Govinder Singh and held that findings recorded in the former case i.e. CS No. 41 of 1997, if given, shall operate as res-judicata in the latter case i.e. CS No. 31 of 2003. Though person namely Sardar Govinder Singh (plaintiff in latter suit CS No. 31 of 2003) filed LPA No.6 of 2007, laying therein challenge to order dated 2.1.2007 passed by the learned Single Judge, but same was dismissed vide judgment dated 7.5.2015 (Annexure P-C). In the aforesaid appeal, specific plea came to be made by Sh. Sardar Govinder Singh (plaintiff in CS No. 31 of 2003) that additional issue i.e. issue No. 12A framed in the suit vide order dated 6.1.2005, has not been framed in the earlier suit and as such, order dated 2.1.2007, deserves to be set-aside, however, Division Bench of this Court while negating the aforesaid plea held that parties are at liberty to raise all pleas in the earlier suit.

4. Though evidence of the Pravir Singh i.e. plaintiff in the former suit and his father Sardar Govinder Singh i.e. petitioner-defendant in the former suit CS No. 41 of 1997 stood recorded in the High Court but on account of change in the pecuniary jurisdiction, suit filed by Pravir Singh i.e. CS No. 41 of 1997 was transferred to the court of learned Additional District Judge, Shimla, and was registered as CS No. 8-S/1 of 14/1997. Similarly, another suit CS No. 31 of 2003, which was stayed vide order dated 2.1.2007, was also transferred to the court below on account of change in pecuniary jurisdiction, however, same could not proceed further in view of stay granted by this Court vide order dated 2.1.2007. In the aforesaid background, proceedings in CS No. 41 of 1997 commenced in the court of learned Additional District Judge, Shimla. Though evidence of the plaintiff stood recorded in afore suit, but repeatedly matter was adjourned for recording the statements of witnesses adduced by the defendant. However, on the subsequent date, defendant was also examined, but despite repeated opportunities, none came present for his cross-examination and as such, learned Additional District Judge vide order dated 9.5.2019 (Annexure P-E) dismissed the suit in default. On account of dismissal of the former suit bear