Delhi District Court
Ms. Gurbir Kaur Chadha vs Sh. Naginder Pal Singh Lamba on 19 July, 2013
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IN THE COURT OF MS. SUJATA KOHLI:ADDITIONAL
DISTRICT JUDGE:
WEST DISTRICT:TIS HAZARI COURT:DELHI
CS No. 297/2010
1. Ms. Gurbir Kaur Chadha
W/o S. Jasbir Singh Chadha,
D/o Late Sh. Man Singh Lamba &
Late Smt. Tej Kaur Lamba,
R/o C6, Rajouri Garden,
New Delhi, aged 63 years.
2. (a) Sh. Harveen Singh Lamba
S/o Late Sh. Devender Singh Lamba,
R/o G68, Naraina, New Delhi.
(b) Ms. Arvinder Kaur,
D/o Late Sh. Devender Singh Lamba,
W/o Sh. C.S. Bhatia, R/o D26, First Floor,
Naraina Colony, New Delhi.
(c) Ms. Tarvinder Kaur
D/o Late Sh. Devender Singh Lamba
W/o Sh. Harbhajan Singh,
R/o 43L, Model Town, Teh Hoshiarpur,
Distt. Hoshiarpur, Punjab.
(d) Ms. Ravinder Kaur,
D/o Late Sh. Devender Singh Lamba,
2
W/o Sh. Gursharan Singh,
R/o 7/2, Punjabi Bagh Extension, New Delhi.
3. Ms. Jasmeet Kaur Chadha,
W/o S. Balveen S. Chadha,
D/o Sh. Jaspal Singh Lamba
R/o J11/99, Ground Floor,
Rajouri Gardne, New Delhi.
....Plaintiffs
VERSUS
1. Sh. Naginder Pal Singh Lamba
S/o Late Sh. Man Singh Lamba,
(since deceased)
Through Legal Heirs
(a) Ms. Gurmeet Kaur - wife
(b) Ms. Prabhnoor - minor daughter
All R/o G230, Naraina Vihar, New Delhi.
(c) Ms. Bani Kaur Banga - daughter
W/o Sh. Gagandeep Singh Banga,
R/o WZ43, Gali No.3, First Floor,
Shiv Nagar, New Delhi.
2. Sh. Amarjeet Singh Lamba,
S/o Late Sh. Man Singh Lamba &
Late Smt. Tej Kaur Lamba
C/o Sh. Tarandeep Singh Lamba,
3
R/o G230, Naraina, New Delhi.
And also at
address of America
3. Late Sh. Inderjeet Singh Lamba,
S/o Late Sh. Man Singh Lamba
(since deceased)
through legal heirs
(a) Smt. Devender Pal Kaur Lamba (wife)
(b) Raman Jeet Singh Lamba (son)
(c) Charan Jeet Singh Lamba (son)
All R/o G230, Naraina, New Delhi.
(d) Sonia Chawla (daughter)
W/o S. Amarjeep Singh Chawla,
R/o A56, Pocket8, Kalkaji Extn.,
New Delhi.
4. Sh. Daljeet Singh Lamba
S/o Late Sh. Man Singh Lamba &
Late Sh. Tej Kaur Lamba
R/o G23/5, Rajouri Garden,
New Delhi28.
5. Ms. Jagvinder Kaur Banga,
W/o Sh. Rajinder Singh Banga,
D/o Late Sh. Man Singh Lamba &
Late Smt. Tej Kaur Lamba
R/o H327, New Rajinder Nagar,
New Delhi.
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6. (a) Sh. H.S. Sachdeva,
(b) Sh. R.S. Sachdeva - son
(c) Sh. B.S. Sachdeva - son
(d) Sh. J.S. Sachdeva - son
All sons of Late Sh. Surender Singh Sachdeva
All R/o C3/151, Janakpuri, New Delhi.
.........DEFENDANTS
DATE OF INSTITUTION OF THE CASE: 16.01.2010
DATE OF RESERVATION OF ORDER : 01.05.2013
DATE OF JUDGMENT/ORDER : 19.07.2013
JUDGMENT
By the present suit, plaintiffs have sought a of damages as well as mesne profits stating therein that they are descendants of one late Sh. Man Singh Lamba and late Smt. Tej Kaur Lamba w/o Sh. Man Singh Lamba.
2. Further stated that premises bearing No.G230, Naraina, New Delhi measuring 300 Sq.Yds (referred to as the suit property) was purchased by late Smt. Tej Kaur Lamba from DDA vide an auction held in the year 1966 i.e. on 30.01.1966 on leasehold rights.
3. That Smt. Tej Kaur Lamba died on 10.09.1974 leaving behind the following legal heirs as per the family tree hereunder: 5 FAMILY TREE PLAINTIFFS Man Singh Lamba + Smt. Tej Kaur Lamba (Husband) (Wife) (Deceased on 27.12.1992) (Deceased on 10.09.1974) Daughter Son Son Gurbir Kaur Chadda Devender Singh Lamba Jaspal Singh Lamba (Plaintiff No. 1) (Deceased on (Plaintiff No. 3) 02.03.2001) (Deceased on 27.05.2002).
Wife also deceased on
22.02.1979)
^ ^
P2 (a),P2(b) P2(c), P2(d) Plaintiff No. 3D FAMILY TREE DEFENDANTS Man Singh Lamba + Tej Kaur Lamba (Husband) (Wife) SON SON SON SON DAUGHTE DAUGHTE R R Nagender Amarjeet Inderjeet Daljeet Jasvinder Savinder Singh Singh Singh Singh Kaur Banga Kaur 6 Lamba Lamba Lamba Lamba (Defendant (Deceased (Deceased (Defendan (Deceased (Defendan No. 5) on on t No. 2.) on t No. 4) 10.05.78) 15.01.2009 24.08.1990 ) ) ^ ^ ^ ^ ^ ^ Vakalat Vakalat D3(a), (Served), (Served) D6 (a), nama nama D3(b), Vakalatnama D6 (b), D3(c), & WS. D6 (c), D1 (a) D3(d) (No D6 (d).
D10(c) evidence) (Vakalat
nama & WS).
4. It is claimed by the plaintiff that after the death of Smt. Tej Kaur Lamba and her husband Sh. Man Singh Lamba, all the sons and daughters became owners of the suit property to the extent of 1/9th share each.
5. It was alleged that two of the legal heirs of defendant no.1 are occupying and possessing the ground floor and that first floor of the suit property is in use and occupation of Sh. Taranjit Singh Lamba son of defendant no.2 while the Second floor of the suit property is alleged to be in use and occupation of 3 legal heirs defendants no.3.
6. Further stated that a suit for partition bearing No.981/02 is already pending between the parties of the present suit before the court of Ld. Civil Judge, Delhi.
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7. Further stated that it is only defendants no.1 to 3 and their legal heirs who have been using the suit property since last many years and as such, the suit property is in their continuous use and occupation.
8. Further alleged that prevalent market rent in the area with respect to the same size of suit property is not less than Rs.50,000/ per month and as such, the plaintiffs are claiming the same at the rate of Rs. 50,000/ per month from the defendants for use and occupation of the suit property by the defendants w.e.f. January 2007 till the defendants actually vacate the suit property and handover the vacant/physical and peaceful possession.
9. Plaintiffs as being the legal heirs of late Sh. Man Singh Lamba and late Smt. Tej Kaur Lamba, are claiming to be the coowners of the suit property.
10. As alleged defendants no.1 to 3/their legal heirs being in occupation and possession of the suit property, are alleged to be jointly and severally are liable to pay a sum of Rs.6 lacs alongwith interest since January 2007.
11. Further stated that plaintiffs requested the defendants to pay the said sum for use and occupation of the said property but the said 3 defendants avoided the plaintiffs.
12. Plaintiffs have valued the suit for a purpose of pecuniary 8 jurisdiction at Rs.18 lacs while they have valued the suit for purpose of court fee at Rs.6 lacs. Further they have opted to pay the court fee upon the basis of their claimed share of 1/9th in the amount.
13. Vide proceedings dated 30.03.2010, main counsel Sh. Shrikant Pandit appeared for plaintiffs and one proxy counsel Sh. Rajesh Kumar for main counsel on behalf of LRs of defendants no.1 and 2 and vakalatnama was also filed. Defendants no.3, 4 and 5 (a to c) were considered served but none appeared on their behalf. Defendant no.6 (a to
d) not served.
14. Though defendant no.3, 4 and 5 were also recorded to have been served but somehow it was noted that the WS of defendants no.1 and 5 (only) was awaited.
15. Vide proceedings dated 05.05.2010, again only proxy counsel Sh. Rajesh Kumar appeared on behalf of LRs for defendants no.1 and 2. Defendant no.4 and defendant no.6(a) were represented by the same counsel Sh. S.S. Sachdeva. None appeared for defendants no.3 and 5. While WS was filed on behalf of defendants no.4 and defendant no.6 (a to
d), none of the other defendants filed any WS.
16. Ultimately observing this fact, right to file WS for defendants no.1, 2, 3 and 5 was closed by order dated 20.07.2010.
17. Vide proceedings dated 20.07.2010, it was observed that ld. 9 counsel for plaintiffs made a statement that keeping in view of that defendants no.4 and 6 (a to d) were already admitting the suit of the plaintiffs and against them, no relief had been claimed, there would be no need to frame any issue. Matter was kept for consideration on this aspect.
18. On the next date, matter was considered and ultimately defendants no.1 to 3 were proceeded exparte and matter was listed for ex parte evidence.
19. At the time of arguments also, it was submitted that the averments made only against defendants no.1 to 3 and they were not contesting the suit while other defendants no.4 and 6 were only proforma defendants. As such, matter came up for consideration and final orders.
20. While perusing the record, it transpired that defendant no.4 was clearly only the proforma defendant as was the stand of both the parties. But for some reasons, Ld. counsel Mr. Sameer Diwan for defendant no.4 chose to crossexamine the witnesses of the plaintiffs more by way as if reassurance from the plaintiffs that he was not claiming any relief against defendant no.4.
21. It is the settled legal position even if a case is proceeding ex parte and the defendants appearing are only perfoma defendants, the plaintiff would still require to establish his own case.
22. The present suit on the face of it, would not be maintainable 10 as the only relief sought herein with respect to a property claimed to be joint family property, and is one for recovery of damages and mesne profits, while admittedly the suit for partition and possession is pending separately in another Court. The relief of mesne profit is always to be determined after the decision on the question of partition as well as possession and not independently of the same, and in a parallel proceeding as has been done in the present case.
23. In fact the question of mesne profits cannot even be decided at all without the question of partition. Besides this relief would more appropriately have been sought in the suit already pending for partition and possession being Suit No. 981/2002, the particulars whereof had been furnished in the plaint itself.
24. As such for both the reasons, and independently of each other, one being the bar created by the provisions of Order 2 Rule 2 CPC which provides that the relief which could have been claimed in one suit, if was not claimed, an independent separate suit cannot be filed for the same relief. The object of the said provision is to avoid multiplicity of the proceedings.
25. The second reason being that even otherwise without a decree in the suit for partition i.e. the share of each LR/Party being undecided and without there being any decree for possession, there would arise no 11 question for determining mesne profits, and in fact for that stage, a separate inquiry would be required, even if it were claimed in the said other suit.
26. The claim towards use and occupation would arise only after the date of decree for possession, if any, and such decree of possession would only give a cause of action for making a claim of this nature. Admittedly, the suit for partition and possession is still pending as per the own submissions of the plaintiff in another Court. The plaintiffs could very well have sought amendment in that existing pending suit being the main suit by adding the prayer of mesne profits instead of coming up with the separate independent suit.
27. As such, Order 2 Rule 2 CPC clearly provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action unless the plaintiff relinquishes part of his claim.
28. Sub Rule (3) thereof further provides that person entitled to more than relief in respect of the same cause of action, may sue for all or any such reliefs but if he omits, except leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief, so omitted.
29. The principle underlying the provisions of Order 2 Rule 2 12 CPC is that the plaintiff is not allowed to split relief arising out of the same cause of action by filing separate suits. No one should be vexed twice by splitting the claims and splitting the remedies.
The law in this case is as under: "1. Frame of suit - Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
Object It is clear from sections 10, 11 and 12 and Order II, rule 1 and 2, and other relevant provisions of Civil Procedure Code that fundamental aim and object is to avoid multiple suit may be founded on same cause of action or may be relating to same subjectmatter ; Hari Ram v. Lichmaniya, AIR 2003 Raj. 319.
Scope and applicability A bare perusal of the provisions of Order II, rules 1 and 2 makes it clear that they are mandatory in nature. The terms "shall" and not "may" occurs in all the rules. Thus, under Order II, rule 1, the 13 plaintiff is duty bound to claim the entire relief. The suit has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim, which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of this claim, he shall not afterwards sue in respect of the portion so omitted or relinquished; SNP Shipping Services Pvt. Ltd. v. World Tanker Carrier Corporation, AIR 2000 Bom. 34.
The conduct of a litigant of not including all the grounds available to him on the subject in dispute in one suit and instituting several suits against the same parties on the same subject in dispute, is abuse of the process of the Court. Indeed, if a litigant is permitted to adopt such a course of action, he may institute such subsequent suit not necessarily, in the same Court, but in different States at different times. This opens the possibility of different Courts, all of competent jurisdiction, rendering contradictory decisions on the same subject in dispute between the same parties, and when all these Courts are of equal authority 14 and are part of the one legal system, it will definitely bring the administration of justice in disrepute. If a litigant is permitted to move from one Court to another Court of equal jurisdiction, in search of an interim order, when the litigation is on the same subject and between the same parties, then it will bring the entire legal system in disrepute apart from subjecting the Defendant to harassment; Simithkline Beecham Healthcae Gmbhy v. Hindustan Lever Limited, 2002 (1) Mh LJ 453."
"Difference between rule 1 and rule 2 Perusal of rule 2 of Order II shows that it obliges a plaintiff to include his whole claim, which he is entitled to make in respect of a cause of action, it also provides for the consequence of the plaintiff's failure to do so. A comparison of the provisions of rule 1 and rule 2 of the Order II shows that there are two marked differences; (i) rule 1 uses the phrase "subject in dispute", whereas rule 2 uses the phrase "cause of action", and (ii) rule 2 provides that failure of a plaintiff to abide by the mandate of rule
2 results in the plaintiff being debarred from instituting a fresh suit for that claim, 15 however, rule 1 does not provide for the consequence that will result from non compliance; Simithkline Beecham Healthcae Gmbhy v. Hindustan Lever Limited, 2002 (1) Mh LJ 453.
In case a plaintiff leaves out from a suit some reliefs which arise from the same cause of action and institutes a fresh suit claiming those reliefs, then in such a case, the only enquiry that the Court will have to make is as to whether the reliefs claimed in the subsequent suit arise out of the same cause of action on which the former suit is instituted and on finding that it is so, the Court has no option but to dismiss the subsequently instituted suit, though, the plaintiff might have left out the reliefs, because of a fina fide mistake. On that other hand, in the case where rule 1 applies, because the rule I directory, the court will have to examine whether, the failure of the plaintiff to include the ground on the subject in dispute was because of bona fide mistake, whether the institution of the fresh suit on the same subject in dispute has either resulted or is likely to result in abuse of the process of the Court, in causing harassment or grave prejudice to the Defendants etc. and in case the Court finds 16 in favour of the plaintiff on these points, then Court will be justified in entertaining the fresh suit though the plaintiff has committed breach of the provision of rule 1, Order II; Simithkline Beecham Healthcae Gmbhy v. Hindustan Lever Limited, 2002 (1) Mh LJ 453."
"Scope The requirement of Order II, rule 2 is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enable a person to ask for a large and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings; Sidramappa v. Rajashetty, AIR 1970 SC 1059."
"The provision of Order II, rule 2 is based on the principle that no person should be vexed twice for the same cause of action. The rule provides that every suit shall include the whole of the claim and the reliefs, which the plaintiff is entitled to 17 make in respect of the cause of action. If he falls to do so, afterwards, he will not be entitled to sue for the portion of the claim or the relief so omitted. However, if there are different causes of actions arising even out of the same transaction, the plaintiff is not obliged to bring suit with regard to all if them. Similarly, when the cause of action on the basis of which the earlier suit was brought, does not form foundation of the subsequent suit and in the earlier suit the said relief would not have been claimed which have been claimed in the subsequent suit, the subsequent suit is not barred under the said provisions; Ramesh Kumar Bhatia v. Lalit Kumar Bhatia, AIR 201 Pat 174."
"Order II rule 2 enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of this claim he shall not afterwards sue in respect of the portion so omitted or relinquished; S.N.P. Shipping Services Pvt. Ltd. v. World Tanker Carrier Corporation, AIR 2000 Bom 34."18
"A mere look at the provisions shows that once the plaintiff comes to a court of law for getting any redress basing his case on an existing cause of action, he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a party of the claim based on the said cause of action or omits to sue in connection with the same, then he cannot subsequently resurrect the said claim based on the same cause of action. So far as subrule (3) is concerned, before the second suit of the plaintiff can be held to be barred by the same, it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had filled to press into service in that suit cannot be subsequently prayed for except with the leave of the Court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order II, rule 2, sub rule (3) that the second suit of the plaintiff filed is based on the same of action on which its earlier suit was based and that because it had not prayed for any relief and 19 it had not obtained leave of the Court in that connection. It cannot sue for that relief in the present second suit; Kunjan Nair Sivaraman Nair v. Narayanan Nair, AIR 2004 SC 1761."
"Cause of action The requirement of Order II, rule 2 is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of cause of action. 'Cause of action' means the 'cause of action for which the suit was brought'. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a large and wider relief that that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceeding; Sidramappa v. Rajashetty, AIR 1970 SC 1059."
"A cause of action, thus, means every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words, it is a bundle of fats which taken with the law applicable to them gives 20 the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded; Swamy Atmananda v. Swam Bodhananda, AIR 2005 SC 2392: 2005 (3) SCC 734."
30. Furthermore, it is quite astonishing that though the plaintiffs have prayed for a decree of mesne profits against defendant nos. 1 to 3/their LRs, stating in the plaint in para12 that the first floor of the suit property is in use and occupation of Sh. Taranjeet Singh Lamba/son of defendant no. 2, but they have not bothered to implead the said person admittedly in occupation.
31. In the para11 of the plaint, it has been stated that at present two of the LRs of defendant no. 1 are occupying and possessing the ground floor and basement of the suit property, and both are in use and occupation of the ground floor. Firstly there are three LRs of deceased Sh. Nagender Singh, would title as defendant nos. 1 (a), (b) and (c).
32. Plaintiffs did not see any need to specify the names of the 21 particulars of the LRs who are alleged to be in occupation and possession of the ground floor. Further the prayer clause does not even make it clear as to the decree for mesne profits was being claimed in respect of which portion, as in the paras 11 and 12 as well as 13, the plaintiffs have not narrated as to who are in possession of the different floors of the property. It is not at all clear from the prayer as to against which defendants decree for mesne profits was being sought in respect of which floor and by which person.
33. By para 12 of the plaint, plaintiffs have further stated that first floor of the suit property is in use and occupation of Taranjeet Singh Lamba/son of defendant no. 2 (defendant no. 2 is alive), and he is in continuous possession thereof.
34. Further as para 13 of the plaint, second floor of the suit property is in use and occupation of three LRs of defendant no. 3. Once again, factually and as per record, there were four LRs of defendant no. 3 i.e. defendant no. 3 (a) and (d), and it is not being mentioned which three of these four LRs are in occupation of the second floor.
35. In para14, the plaintiffs go on to state that suit for partition bearing CS No. 981/2002 is already pending between the parties to the present suit in the Court of Sh. V.K. Rai, Ld. CJ, Delhi. 22
36. Sh. Tarandeep Singh Lamba son of Sh. Amarjeet Singh Lamba/defendant no. 2 is stated to be in occupation of first floor, and defendant nos. 1 (a), (b), © as well as defendant nos. 3 (a), (b), (c), and (d) and Mr. Tarandeep Singh Lamba son of defendant no. 2 is stated to be in possession of the suit property.
37. If all the floors taken together are forming the suit property, then Mr. Tarandeep Singh Lamba would have been a necessary party, as mesne profits are being claimed against him as well.
38. He was not impleaded as a party, and therefore, on this ground as well, the suit would not be maintainable due to nonjoinder of the necessary party.
39. Apart from this, even otherwise, the amount claimed i.e. Rs. 6,00,000/ alongwith interest etc. since January, 2007, has no basis thereto. There is no material on record to justify that the monthly rent of the suit property would be Rs. 50,000/.
40. The PW3 who was examined and who claimed to be a Property Dealer engaged in Real Estate Business for the last about 15 years or so in the area of Kirti Nagar, Narayana etc., however, he tried to prove the rent prevailing in the area where the suit property was located, and simply, he stated that it was Rs. 50,000/ pm. He failed to produce any 23 documentary material on record to support his statement. Being in real estate business, he could have produced Lease Deeds being executed in respect of the other properties in the area, to which he could have easy access, but neither the said witness nor the plaintiff produced any documentary evidence in this respect.
41. Therefore, there was no substance in the claim for a sum of Rs. 6 lacs or for a rent of monthly rental @ Rs. 50,000/ pm. The question for any arrears thereto, would not arise in view of the reasons already stated above i.e. that the suit for partition is yet to be decided by the concerned Court, and further apart from the bar created U/O 2 Rule 2 CPC, discussed above.
42. Plaintiff No. 2 (a) i.e. Sh. Harveen Singh Lamba claimed that the plaintiff no. 2 (b), (c) and (d) had relinquished their shares in his favour.
43. Para6 of the plaint, plaintiffs have claimed that Ms. Ravinder Kaur, Ms. Tarvinder Kaur and Ms. Arvinder Kaur have relinquished their rights in favour of their brother Sh. Harveen Singh Lamba i.e. plaintiff no. 2 (a), but no such Relinquishment Deeds were even proved on the record.
44. Plaintiff examined three witnesses in their exparte evidence i.e. PW1 Sh. Harveen Singh Lamba on his affidavit Ex. PW1/A, and 24 tendered three documents i.e. are as under:
1. Certified Copy of Allotment Letter as Ex. PW1/1.
2. Certified copy of the Perpetual Lease Deed executed between the President of India (referred to as a Lessor) of the one part and Smt. Tej Kaur (deceased mother of the parties) on the other, in respect of the suit property.
3. Death Certificate of S. Devinder Singh Lamba as Ex.
PW1/3.
45. Copy of the Lease Deed to show the rentals pertaining in the area was only a photocopy and was deexhibited and only marked as Mark A.
46. During the course of the arguments, several queries were put by the Court, but Ld. Counsel only maintained that since the suit was proceeding exparte, and the defendants appearing were only perfoma defendants, Orders should be passed.
47. The Hon'ble Supreme Court in the judgment reported as "Ramkarandas Radhavallabh Vs. Bhagwandas Dwarkadas, AIR 1965 Supreme Court 1144 (V 52 C 179), has held that even though a case has been brought under Order 37 CPC it does not by itself imply that the suit would have to be decreed in favour of the plaintiff even when the plaintiff 25 is not found entitled otherwise, to the relief as prayed for, just because the defendant has failed to enter appearance or to file an application for leave to defend as envisaged under the provisions of Order 37 CPC.
"It seems to us that what subrule (2) of Rule 2 of Order 37 CPC contemplates is that the Court will accept the statements in the plaint as correct and on those statements pass such decree as the plaintiff may in law be entitled to. If, for example, the plaint discloses no cause of action, the Court cannot pass any decree in favour of the plaintiff. If this were not so, the word allegations in the plaint shall be deemed to be admitted " in subrule (2) of Rule 2 of Order 37 CPC would have been unnecessary. The court in making a decree under subrule (2) of Rule 2 of Order 37 CPC has to keep the law in mind. If the law requires the Court to exercise a discretion on the facts deemed to be admitted, it will have to do so".
48. However, above all, the question of shares of each LR remains undecided, no claim can lie for mesne profits as filed separately in the present suit until and unless the question of partition and possession had been decided by the concerned Court, the suit at hand would not be maintainable at all.
49. In view of the above discussion, the suit as filed before this 26 Court is found totally a gross abuse of the process of law, and leading up to a burden upon precious judicial time in the form of this like multifarious suit on one and the same cause of action. As such, the present suit is being dismissed with cost of Rs. 20,000/ to be deposited with DLSA.
Decree Sheet be prepared.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT (SUJATA KOHLI) TODAY i.e. ON 19TH JULY, 2013 ADJ:WEST:THC DELHI:19.07.2013