The main legal point established in the judgment is that the non-disclosure of a previously instituted suit and the principles of res judicata should be carefully considered in determining the maintainability of a subsequent suit.

JUDGMENT

Anil Kshetarpal, J. - The defendant-appellant is in the regular second appeal against the judgment passed by the learned first appellate court reversing the judgment of the learned trial court resulting in decreeing the suit filed by the plaintiff-respondent.

2. The questions which require consideration are as under:-

(i) Whether in absence of any cogent evidence, the court can infer/assume fraud in the conduct of the proceedings in the previous suit and on that basis set aside the judgment and decree passed by the court in the previous suit with the consent of the parties?

(ii) Whether non-disclosure of pending suit between the parties is fatal to the result of the suit under Order 7, Rule 1(j) of the Code of Civil Procedure ('for short 'CPC) as applicable to the States of Punjab, Haryana and UT Chandigarh?

3. Some facts are required to be noticed. Paras Ram, a common ancestor of the parties, was having five sons namely Lekha, Har Narain, Nand Ram, Jal Singh and Bohri Lal. Lekha was a childless bachelor. Jal Singh has a son namely Rambir. Rambir initially filed a Civil Suit No. 701 of 1998 on 09.11.1998, pleading that in a family settlement which took place one year back, Lekha had admitted claim of Rambir in the suit resulting in declaration that he is owner in possession. Now this fact is being disputed. During the pendency of the aforesaid suit, Rambir filed another suit on 13.05.1999 bearing Civil Suit No. 220 of 13.05.1999 pleading that in a family settlement which took place on 01.01.1999, Lekha defendant/ appellant had admitted that Rambir-plaintiff to be owner in possession. In the aforesaid second suit i.e. Civil Suit No. 220 of 13.05.1999, Lekha appeared through counsel on 21.05.1999 and filed a written statement through counsel admitting the assertion made in the plaint. Shri Lekha appeared before the court and suffered a statement admitting the contents of the plaint. Rambir also suffered a statement on the same day and the court passed a judgment and decree under Order 12, Rule 6 CPC. The decree, which has been passed, was first challenged by brother of Lekha, Har Narain and the aforesaid suit as per the pleadings is pending. Lekha also filed a suit on 19.07.1999, challenging judgment and decree dated 25.05.1999 on the ground that the aforesaid judgment and decree is result of fraud. At this stage, it may be noticed that Lekha in his plaint stated that Rambir had brought to the civil court at Palwal and got his signatures on some papers on the excuse that the plaintiff had to defend a suit filed against him by his other nephews. Lekha also stated in the plaint that he appeared before the court but the Presiding Judge did not ask him as to how and for what purpose the plaintiff has come to the court. With these assertions, the suit was filed which was contested by Rambir-appellant herein. Assertions with regard to fraud were disputed and it was reiterated that this suit has been filed by the plaintiff in collusion with Har Narain, his brother, who has also filed a similar suit which is pending.

4. Learned trial court dismissed the suit, whereas the learned first appellate court has reversed the judgment and decree. Learned first appellate court has recorded following reasons:-

(i) Second suit i.e. Civil Suit No. 220 of 1999 was not maintainable once first suit i.e. Civil Suit No. 701 of 1998 was pending.

(ii) Second suit is hit by the principles of resjudicata.

(iii) Plaintiff Rambir when appeared in evidence has stated that he has not signed the plaint Ex. PY i.e. in a Civil Suit No .220 of 1999 and therefore, there was no suit filed by Rambir.

(iv) Since pendency of Civil Suit No. 701 of 1998 was not disclosed while filing the second suit 220 of 1999, therefore, the non-disclosure is fatal to the suit. Hence, judgment and decree is liable to be set aside.

5. It may be noted that Civil Suit No. 701 of 1998, i.e. the first suit, was dismissed for non-prosecution on 29.05.1999. In support of his evidence, L