Delhi District Court
Smt. Sunita Khanna And Ors vs Sh. Prithvi Raj Jandoria And Others on 22 December, 2007
IN THE COURT OF SH. D.C. ANAND : A.D.J. : DELHI
S-201/07
Smt. Sunita Khanna and Ors. ....Plaintiffs
Versus
Sh. Prithvi Raj Jandoria and Others ....Defendants
ORDER
1. This order shall dispose of two applications filed by respective parties i.e. U/O 2 Rule 2 r/w 151 CPC filed by the defendant no. 1 and application u/o 39 Rules 1 & 2 CPC filed by the plaintiff.
2. In the application filed u/o 2 Rule 2 r/w Section 151 CPC the defendant stated that plaintiffs have filed a suit no. 1555/06 on 14.08.2006 in respect of the suit property wherein prayer was made that defendant be restrained from creating any third party right / interest / title or entity and also from handing over possession thereof alongwith the rights of upper storey. That suit is pending for 06.10.2007 wherein ad-interim ex- parte orders were declined on the application of the plaintiffs. The plaintiff concealed the pendency of that suit while filing the present suit before this court. In support of application reference is made to Order 2 Rule 2 r/w Section 151 CPC so as to submit that relinquishment of part of claim or any portion of the claim shall not be subject matter of another suit and the plaintiff is debarred from filing the present suit in respect of portion so omitted / relinquished.
3. The application is contested as earlier suit was based on threats while the present suit filed against the defendant no. 2 & 3 besides defendant no. 1 for partition of the suit property is based on different cause of action as also the plaintiff application was dismissed in the earlier suit as the plaintiff claimed the relief in respect of whole property instead of 4/5th share in the said property. In the earlier suit no relief of partition or rendition of the account was claimed whereas in the present suit filed relief of partition and rendition of account has been claimed as also defendant no. 1 has taken a false plea in the prayer that plaintiffs have no share in the suit property in support of the plea taken by the plaintiff. Reliance is made to case of Smt. Nirmala Vs. Hari Singh reported AIR 2001 Himanchal Pradesh -I wherein their lordship observed that "Rule 2 of 0.2 does not preclude second suit based on distinct and separate cause of action. To make this rule applicable, the defendant must satisfy three conditions : (a) The previous and second suit must arise out of the same cause of action ; (b) Both the suits must be between the same parties and (c) The earlier suit must have been decided on merits. In the present case there is no evidence to show that cause of action for the previous suit admittedly was not decided on merits as the same was withdrawn by the plaintiff-respondent.
Therefore, it cannot be said that the present suit is not maintainable."
4. Reference made to the case of Abhuri Rangamma Vs. Chitrapu Venupurnachandra Rao and others reported in AIR 1966 Andhra Pradesh 325 (V 53 C 102) is also helpful to the plaintiff as well as Prem Nath Kapur Vs. Gurdit Singh & Ors, reported in 1971 RLR Page 95 in the given facts and circumstances as suit for partition is based on different cause of action and it is well settled proposition of law that even after filing a suit for permanent injunction, a suit for partition lies and cannot be held barred u/O 2 Rule 2 r/w Section 151 CPC. The reference made in the case of N.V Srinivasa Murthy & Ors. Vs. Mariyamma reported in AIR 2005 SC 2897, C.A Balakrishnan Vs. Commissioner Corporation of Madras reported in AIR 2003 Madras 170, SNP Shipping Services Pvt. Ltd. & Ors. Vs World tanker Carrier Corpn. reported in AIR 2000 Bom 34 as well as Ganpat Lal Gupta & Ors. Vs. Vth Add. Dist. Judge Deoria, Dist. reported in 2003 ALL.L.J. 2423 are not applicable to the present facts and circumstances of the case and as such not relevant for the purpose of disposal of the application and accepting the plea as taken in the application by the defendant. The application as such is dismissed.
5. Regarding application u/O 39 Rules 1 & 2 r/w Section 151 CPC the plaintiff has prayed for restraining the Defendant no. 1 from transferring or parting with possession 4/5th undivided share of the plaintiffs in the suit property without the prior written consent of the parties and further Defendant no. 2 & 3 to be directed to pay future 4/5th share of the rent in respect of their tenanted portion in the suit property to the plaintiffs till the final disposal of the main suit.
6. This application was contested as devoid of any merit and substance in view of the plea taken in the written statement that deceased mother of the plaintiff and wife of defendant no. 1, namely Smt. Vidya Rani purchased the suit property from her own savings and was the sole and absolute owner of the suit property during her life as was pleaded by the plaintiffs. Defendant no. 1 also stated that suit property was purchased by him out of his own funds in the name of her wife Smt. Vidya Rani who also made a will in favour of Defendant no. 1 to the exclusion of all the plaintiffs. The plaintiff has pleaded that Smt. Vidya Rani did not execute any will in respect of the suit property. The defendant has not placed any will on record of the case file and only relied upon the copy of the report lodged to the Police Station, Shakar Pur by Defendant no. 1 as was also pleaded in the W/S. Besides that no other document has been placed or relied upon by the defendant.
7. On the face of the pleadings and no will on record filed by Defendant, the plaintiff has got a prima-facie case in their favour as also defendants are under obligation not to part with the possession of 4/5th share of plaintiff in the suit property till disposal of the suit. The balance of convenience also lies in favour of the plaintiff. The plaintiffs shall also suffer irreparable loss in case their share is not protected till decision of the case on merits which required evidence. However the other relief claimed in the application cannot be granted as prima-facie nothing has been pleaded about the extent of the rent of the tenanted portion of the suit property paid by Defendant no. 2 & 3 to the Defendant no. 1 of which share cannot be ascertained also at this stage without evidence on record also. To that extent accordingly, the application of the plaintiff is partly accepted and the defendants are directed not to part with possession of the share of the plaintiffs undivided share, that is 4/5th share in the suit property to any third party till decision on merits of the suit. The expression made herein above shall not tantamount to observations on merits in the case.
Announced in the open court on (D.C Anand) 22.12.2007 ADJ/DELHI/22.12.2007