2019 Supreme(P&H) 483

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Anil Kshetarpal
RSA No. 414 of 2001 (O&M)
Joginder Singh & Ors.
v.
Boor Singh & Ors.
{Decided on 12/03/2019}

Plaint – Non disclosure of previous suit – A judgment and decree cannot be set aside merely on the ground that a previous suit instituted has not been disclosed in the subsequent suit /plaint
Will – Suspicious Circumstances – There is a well settled rule of examining a Will that the Presiding Judge should sit in the arm chair of the testator
Will – Suspicious Circumstances – They cannot be on the whims and fancies of one party – They have to have some solid foundation and basis

Headnote:(A) Civil Procedure Code, 1908, O.12 R.6 – Judgment on Admission – Suit was filed on 07.04.1992 whereas judgment and decree was passed on 20.04.1992 – Defendant had appeared in Court and filed written statement admitting the claim of the plaintiffs – He had also appeared in Court and suffered a statement conceding the claim – In such circumstances, the Court passed a decree in accordance with Order 12 Rule 6 CPC – Therefore, it cannot be held that court passed the decree in haste. (Para 9)

       (B) Registration Act, 1908, S.17 – Compulsory Registration – A judgment and decree passed by the Court acknowledging a prior family settlement with respect to a self-acquired property of a common ancestor is not to be compulsorily registered before it can be held to be binding. (Para 11)

       It is held that a common ancestor is entitled to put the property in common stock and thereafter, suffer a decree acknowledging a family settlement and such decree would not be required to be registered unless the property is being transferred through a Civil Court decree. Once a decree is acknowledging a family settlement arrived at prior in point of time, such decree would not require registration. (Para 12)

       (C) Civil Procedure Code, 1908, O.7 R.1 – Contents of Plaint – Non disclosure of previous suit – A judgment and decree cannot be set aside merely on the ground that a previous suit instituted has not been disclosed in the subsequent suit /plaint. (Para 12)

       No doubt, the amendment incorporates that the plaint shall contain particulars. However, attention of this Court has not been drawn to any provision either in Code of Civil Procedure or any other law which mandates the Court to dismiss the suit or reject the plaint only on failure to disclose such facts. In absence of such provision, it would not be proper for the Courts to dismiss the suits on this ground alone. (Para 14)

       (D) Civil Procedure Code, 1908, O.23 R.1(4) – Bar to Fresh Suit – Whether bar to the maintainability of the suit under Order 23 Rule 1 (4) of the Code of Civil Procedure i.e. with respect to institution of a previous suit can be invoked by the Court without examining the pleadings of first and second suit – NO. (Para 16)

       On careful reading of Order 23 Rule 1(4), it is apparent that institution of subsequent/fresh suit in respect of such subject matter or such part of the claim is barred. For proving that subsequent suit (fresh suit) is in respect of such subject matter or such part of the claim as is in the previous suit, it is mandatory for the party asserting to prove on file the plaint of first and second suit. In absence of pleadings of first and second suit, it will not be proper for the Court to record a finding that fresh suit is in respect of such subject matter or such part of the claim. Still further, it will be noted that the word such subject matter or such part of the claim obviously make a reference to cause of action on the basis whereof a suit is instituted. For proving that both the suits were on the same cause of action, it is mandatory that the pleadings of both the suits are produced. (Para 17)

       (E) Succession Act, 1925, S.63 – Will – Suspicious Circumstances – Duty of Court – The Courts no doubt are required to satisfy its conscious while examining the suspicious circumstances surrounding the Will, however, the suspicious circumstances have to have some solid foundation and basis – The suspicious circumstances cannot be on the whims and fancies of one party – There is a well settled rule of examining a Will and which is that the Presiding Judge should sit on the arm chair of the testator. (Para 21)