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2008 DIGILAW 914 (DEL)

Dropati Devi v. Jaswant Singh

2008-09-23

SHIV NARAYAN DHINGRA

body2008
JUDGMENT: JUSTICE SHIV NARAYAN DHINGRA 1. By this petition under Article 227 of the Constitution, the petitioner has assailed the order dated 16th April 2007 passed by learned Additional District Judge, whereby an application of the petitioner under Section 10 of CPC was dismissed. .2. There are two suits pending between the parties qua the same property i.e 5685, Gali No.79-80, Ragarpura, Karol Bagh, New Delhi. The erstwhile owner of this property was Late Shri Mai Singh. The petitioner herein filed a suit for declaration and recovery of possession before this Court claiming that Shri Mai Singh had executed a Will claiming therein that late Shri Mai Singh had executed a General Power of Attorney in favour of the petitioner and had also executed a Will dated 31st May 1999 bequeathing the property in favour of the petitioners. The suit is being contested by the defendants and this Court framed inter alia following issues: “1. Whether the plaintiffs are the absolute owner of the property bearing No.5685, Gali No.79-80 Regarpura Karol Bagh, New Delhi on the basis of the registered Will dated 31st May, 1999 of Late Mai Singh? OPP 2. Whether the defendant ceased to be the member of the family of late Mai Singh after his adoption by late Shri Janglimal? OPP 3. Whether the defendant has locus standi to contest and pray for share and recovery of rent in the suit? OPP ? 7. Whether the property bearing No.5685, Gali No.79-80 Regarpura, Karol Bagh, New Delhi is an ancestral property? OPD 8. Whether late Shri Mai Singh was not competent to execute any will in respect of the suit property? OPD 9. Whether the defendant is entitled to have 1/6th share in the property in question? OPD 10. Whether the defendant is entitled to the rent with respect to his share, received by the plaintiff? OPD? 3. During pendency of the suit before this Court, defendant/respondent filed a suit before the District Court seeking declaration and partition of the same property making petitioner and others as respondents and the trial court framed inter alia following issues: “. Whether the property bearing 5685, Gali No.79-80 Regarpura, Karol Bagh, New Delhi is ancestral property and the plaintiff are the co-parcener of the same and are entitled for partition? OPD 2. Whether the property bearing 5685, Gali No.79-80 Regarpura, Karol Bagh, New Delhi is ancestral property and the plaintiff are the co-parcener of the same and are entitled for partition? OPD 2. Whether the plaintiff are entitled for preliminary decree of partition of the suit property bearing No.5685, Gali No.79-80, Regopura, Karol Bagh, New Delhi? OPD 3. Whether the plaintiff are entitled for arrears of rent collected by the defendant No.1 and 2 from the tenant of suit property with respect to their share? 4. Whether the suit is liable to be stayed under section 10 of CPC in view of the pendency of earlier instituted suit bearing No.115 of 2002 before the Hon?ble High Court of Delhi? OPD Xxxx 6. Whether the defendant No.1 and 2 are the absolute owner of the property by virtue of Will and power of attorney an affidavit executed by late Mai Singh on 31.05.1999? 7. Whether the plaintiff No.1 ceased to the member of the family of late Mai Singh after his adoption by Late Shri Jangli Mal? OPD 8. Whether the plaintiff No.2 and 3 were debarred/disinter cited by Late Mai Singh from his life and property and not entitled for any claim in the suit property? OPD 9. Whether the plaintiffs have no locus to file the present suit and the instant suit is incomplete and not maintainable in law? OPD” .4. It is clear from the perusal of the pleadings of the two suits and the and the issues framed by this Court that the controversy in respect of the property in question pending before this Court is the same which has been raised before the trial court and any decision given by this Court shall become res judicata in respect of the suit filed before the District court. It is settled principle of law that the intent and object of Section 10 of CPC is to prevent the two Courts from simultaneously trying two parallel suits between the same parties in respect of the same subject matter and issues. In order attract Section 10 of CPC, the test is whether the decision reached in the previous suit would operate as res judicata in the subsequent suit or not. In order attract Section 10 of CPC, the test is whether the decision reached in the previous suit would operate as res judicata in the subsequent suit or not. Section 10 CPC applies in all such cases where whole of the subject matter in both the suits is identical and the matters and issues in the first are directly and substantially is issue in the second suit. 5. Counsel for the respondent argued that the second suit was for partition, which relief has not been claimed in the first suit filed before this court and, therefore, filing of the second suit was necessary. It also became necessary because the plaintiff in the second suit has claimed mesne profits which relief cannot be allowed in the first suit. 6. I consider that this argument of the respondent is not tenable. The suit of the respondent, if application under section 10 is allowed, would not to be dismissed but only stayed. The respondent would be entitled to claim mesne profits only if the respondent is held entitled to a share in the property. Whether or not the respondent is entitled to a share in the property is the subject matter of the first suit filed before this Court. I, therefore, consider that merely because an additional relief of mesne profits and partition has been sought, while the basic relief claimed in the both the suits qua the property in question. is the share in the property, the second suit cannot be allowed to be proceeded simultaneously. The issue of mesne profits and partition cannot be decided without first deciding the status i.e. as to who is the owner of the property in question and whether the respondent has any locus standi qua the property in question. Once these issues are settled by this Court, the suit of the plaintiff, if stayed, would get revived and the plaintiff would be able to recover the mesne profits and his share if it is so held by this Court. I, therefore, consider that since the controversy and subject matter in the two suits is same, parties are the same, property in question is also the same, issues framed are also more or less same, the suit before the Court of ADJ is liable to be stayed. 7. In the result, I allow this petition. The suit pending before the trial court is hereby stayed. 7. In the result, I allow this petition. The suit pending before the trial court is hereby stayed. However, the respondent would be at liberty to move an application before this Court for clubbing both the suits together. 8. The petition stands disposed of.