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2014 DIGILAW 2366 (ALL)

Swarnkali Verma v. Alok Kumar Pandey

2014-08-06

A.P.SAHI, VIVEK KUMAR BIRLA

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JUDGMENT Amreshwar Pratap Sahi and Vivek Kumar Birla,JJ. Heard Sri Ajit Kumar, learned counsel for the petitioner. 2. The contention raised is that this Court should exercise its powers under Article 227 of the Constitution of India and proceed to quash the plaint as well as the entire proceedings of Original Suit No. 161 of 2014 as it amounts to an abuse of the process of the Court. 3. For this the facts in brief that have been narrated at the bar are that the inter se suit relating to half share over the property between the petitioner and the predecessors of the contesting respondents ended up in the dismissal of the SLP up to the Apex Court, where under the ex parte decree in favour of the petitioner dated 10.5.1988 became final. 4. Learned counsel for the petitioner submits that once the said judgement and decree is final, the title of the petitioner cannot be disputed, and now the petitioner has filed a suit for partition of the property which is sought to be impeded by filing of this fresh suit by the contesting respondents to create obstacles. 5. Learned counsel for the petitioner submits that the new suit has been filed by the respondents for the purpose of overcoming the judgement and decree in favour of the petitioner and to avoid the partition on absolutely no legal grounds. The submission of Sri Ajit Kumar, learned advocate, is that the suit is neither maintainable nor it can succeed and he has relied on the decision in the case of Smt. Anju Sharma vs. Suresh Chand Jain and others to support his submission reported in Allahabad Rent Cases, 1993 (1) 291. 6. Sri Ajit Kumar submits that the petitioner therefore deserves this relief from this Court as filing of the aforesaid suit by the contesting respondents is nothing else but a sheer abuse of the process of the Court and manifest miscarriage of justice will ensue in case the petitioner is burdened with such litigation. 7. Having considered the submissions raised, we find it appropriate for the petitioner to file an application under Order VII, Rule 11 of the Civil Procedure Code before the Court itself as that would be an appropriate remedy for the petitioner to enable the trial court to decide on the basis of the material adduced before it and take an appropriate decision. However, since we find that the matter is of the year 1983 it would be appropriate that an application if filed by the petitioner within a month from today, the Trial Court shall endeavour to dispose of the said application after allowing the contesting respondents to have their defence in the matter, preferably, within six months. 8. With the aforesaid observations, the writ petition is disposed of.