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2017 DIGILAW 2988 (ALL)

Shamita Bansal v. Surendra Kumar Sharma

2017-12-19

MAHESH CHANDRA TRIPATHI

body2017
JUDGMENT : 1. Supplementary Affidavit filed today be taken on record. 2. Heard Ms. Shreya Gupta, learned counsel for the applicants. 3. Petitioners are before this Court with the request to reject/set aside the plaint as well as entire proceeding of Suit no.604 of 2017 (Surendra Kumar Sharma vs. Smt. Shamita Bansal and others) pending before Civil Judge (Junior Division), Muzzafarnagar. Further prayer has been made to set aside the order dated 15.11.2017 passed by Civil Judge (Junior Division), Muzaffarnagar in the aforesaid suit. 4. It appears that Shri Jaiprakash (who was the alleged predecessor in interest of petitioners) filed Suit bearing no.712/1991 (Jaiprakash vs. Anil Kumar and others) against contesting respondent for a decree of possession of the area marked by letters BCGHB in the plaint map and for injunction preventing opposite parties from interfering in his possession of are marked by letters A'AHB'BCDE in the plaint map, against which the detailed arguments have also been filed by the opposite parties. It further appears that the suit in question was decreed vide order dated 30.03.2010 passed by Additional Civil Judge (Senior Division), Court no.1, Muzzafarnagar and aggrieved with the same, the first respondent along with other defendants has preferred Civil Appeal no.42 of 2010, which was dismissed vide order dated 07.10.2016 passed by Additional District Judge/Fast Track Court, Court no.3, Muzaffarnagar. Thereafter the said order has been assailed by preferring Second Appeal no.1336/2016 (Anil Kumar and others vs. Jaiprakash) and during the pendency of the aforesaid Appeal, Jaiprakash had died issueless leaving behind a registered will dated 05.12.2016 in favour of his niece viz. Shamita Bansal, Ranajan Gupta (first and second petitioners). It also appears that a substitution application had been filed and the same has been allowed by this Court on 06.03.2017. It has been claimed that a separate suit bearing Suit no.604 of 2017 along with an injunction application under Order IXL Rule 1 and 2 CPC has been filed, wherein ex-parte injunction was granted by the Trial Court vide order dated 15.11.2017 and aggrieved with the same, petitioners are before this Court with the aforementioned prayer. 5. Ms. It has been claimed that a separate suit bearing Suit no.604 of 2017 along with an injunction application under Order IXL Rule 1 and 2 CPC has been filed, wherein ex-parte injunction was granted by the Trial Court vide order dated 15.11.2017 and aggrieved with the same, petitioners are before this Court with the aforementioned prayer. 5. Ms. Shreya Gupta, learned counsel for the petitioners precisely submits that till date, the judgment and decree dated 30.03.2010 passed by the Trial Court holds the filed as at no point of time any order of stay or setting aside the same has ever been passed by any competent court of law and now the contesting respondents have filed another suit bearing no.604/2017 seeking, inter-alia, a decree of permanent prohibitory injunction against the petitioners and the proforma respondents in respect of entire Khasra no.3339 admeasuring 0.0880 Hectares and Khasra no.3340 admeasuring 0.0510 Hectares situated in Village Sarvat, Pargana, Tehsil and District Muzaffarnagar, which was earlier disputed in Suit no.712/1991 filed by the predecessor of petitioners, wherein the order impugned granting ex-parte injunction in favour of opposite party has been passed by the Trial Court, which was against the principles of natural justice. She also submits that once over the same disputed land, a decree has been passed by the Trial Court and the same is still holding the filed, then second suit in respect of same suit property cannot be maintained as the same is barred by the provisions of Order II Rule 2 of CPC as well as Order XXIII Rule 1 CPC and as such, the contesting respondent has abused the process of law and this Court should come to the rescue and reprieve of the petitioners. 6. Once it has been claimed that for the same disputed land, Suit bearing no.712/1991 has been filed by the petitioners wherein judgment and decree dated 30.03.2010 has been passed and admittedly the same was assailed in Civil Appeal no. 6. Once it has been claimed that for the same disputed land, Suit bearing no.712/1991 has been filed by the petitioners wherein judgment and decree dated 30.03.2010 has been passed and admittedly the same was assailed in Civil Appeal no. 42 of 2010, which was also dismissed vide order dated 07.10.2016 passed by Additional District Judge/Fast Track Court, Court no.3, Muzaffarnagar and even during the pendency of the second appeal, the substitution application filed by the petitioners has also been allowed, then the arguments advanced by the counsel for the petitioners appears to have substance in the light of the provision provided under Order II Rule 2 CPC as well as under Order XXIII Rule 1 CPC. 7. In view of the above, without issuing notice to the opposite parties, the present Writ Petition is disposed of with the direction upon the Trial Court that in case any such objection with regard to maintainability of suit would be raised by the petitioners while filing the Written Statement in the aforesaid suit in question, then the Trial Court would firstly decide such objection and only thereafter would proceed in the suit proceeding.