Dismissed

Hari Singh v. Ajay Singh

Rajasthan HC19 Sept 2023CR/118/2023

Case brief

AI extract

What is this about?

The High Court dismissed two connected writ petitions challenging a trial court order rejecting applications under bankruptcy and stay provisions. The Court held the writs were not maintainable due to the existence of an effective alternative remedy under Section 115 CPC, particularly since a revision petition challenging the same order had already been dismissed by a coordinate bench.

What did the court decide?

The writ petitions were dismissed. The trial to proceed further in accordance with law.

Hari Singh Vs Ajay Singh — Partition | Rajasthan HC (2023)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 6806/2023

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Hari Singh S/o Late Shri Raghunath Singh, Aged About 63 Years, Resident Of Jalam Vilas, Pawata B-Road, Jodhpur

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----Petitioner

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Versus

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Ajay Singh S/o Late Shri Amar Singh, Resident Of A- 1396, Shakti Nagar, Lane No. 3, Pawta C-Road, Jodhpur

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Rajveer Singh S/o Late Shri Raghunath Singh, Resident Of Jalam Vilas, Pawata B-Road, Jodhpur

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Ranvijay Singh S/o Shri Hari Singh, Resident Of Jalam Vilas, Pawata B-Road, Jodhpur

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Smt. Harender Kumari W/o Late Shri Harish Cahnder Singhji, Resident Of Shiv Kripa, Village Ranasar, Taluka Himmat Nagar, District Sabar Kata, Gujarat.

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----Respondents

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Connected With

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S.B. Civil Writ Petition No. 6843/2023

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Hari Singh S/o Late Shri Raghunath Singh, Aged About 63 Years, Resident Of Jalam Vilas, Pawata B Road, Jodhpur

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----Petitioner

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Versus

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1. Ajay Singh S/o Late Shri Amar Singh, Resident Of A- 1396, Shakti Nagar, Lane No. 3, Pawta C Road, Jodhpur.

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1. Rajveer Singh S/o Late Shri Raghunath Singh, Resident Of Jalam Vilas, Pawata B Road, Jodhpur.

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1. Ranvijay Singh S/o Shri Hari Singh, Resident Of Jalam Vilas, Pawata B Road, Jodhpur.

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Smt. Harender Kumari W/o Late Shri Harish Cahnder Singhji, Resident Of Shiv Kripa, Village Ranasar, Taluka Himmat Nagar, District Sabar Kata, Gujarat.

----Respondents

For Petitioner(s)

: Mr. Moti Singh.

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	Mr. Siddharth Mewara.
For Respondent(s) :	Mr. N.R. Choudhary.
	Mr. Gaurav Choudhary.
	Mr. Surendra Singh.

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HON'BLE MR. JUSTICE ARUN MONGA Order

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29/02/2024

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Grievance of the defendant No. 1 (petitioner herein) arises out of an order dated 20.04.2023 (Annex.11) passed by the learned Additional District Judge-06, Jodhpur (trial Court) in Civil Suit No.58/2012 (Ajay Singh Vs. Hari Singh & Ors.), vide which learned trial court dismissed petitioner’s two applications i.e. one under Order II Rule 2 CPC r/w Order VII Rule 11 CPC for dismissal of the suit and the second

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under Section 10 CPC r/w Section 151 CPC for staying the further proceedings of said subsequent suit filed by the plaintiff.

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Relevant facts, shorn of unnecessary details, are as under: 2.1. Dispute between parties pertains to the immovable suit property situated at Jalam Vilas, Paota, Jodhpur. It is stated that the suit property belonged to Late Maharaja Shri Guman Singh. In the year 1971 a Civil Suit for partition qua suit property was filed, which was disposed of vide Judgment & Decree dated 20.04.1976. According to the said decree, an area measuring 22,808 Sq.Mtrs. & built up structure was given to Smt. Jawahar Kanwar W/o Maharaja Shri Guman Singh.

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2.2. Thereafter, on 19.09.1989 Smt. Jawahar Kanwar divided

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the said property i.e. the area measuring 22,808 Sq.Mtrs. & built up structure in three equal shares by three separate Wills i.e. first share in favour of Late Raj Kumar Shri Amar Singh (father of the

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plaintiff), second share in favour of petitioner-Defendant No.1 – Hari Singh & Respondent-Defendant No.2 – Rajveer Singh and third share in favour of Smt. Gattu W/o Shri Niwas Joshi.

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2.3. During life time of Smt. Jawahar Kanwar, the Respondent No.1-plaintiff was holder of joint possession along with Smt. Jawahar Kanwar untill she died on 23.06.1994.

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2.4. However, after death of Smt. Jawahar Kanwar, the PetitionerDefendant no.1 claiming himself as her only surviving successor, filed an application before UIT, Jodhpur for sub-division of the property.

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2.5. The Respondent No.1-plaintiff Ajay Singh had to then file a suit on 21.01.1997 for permanent injunction seeking to restrain the defendants (including petitioner herein) from selling and alienating the property of late Smt. Jawahar Kanwar. The plaintiff also sought a direction to the U.I.T., Jodhpur not to permit any sub-division without prior notice and without consent of the plaintiff. The plaintiff further sought relief that the defendants may be restrained from dividing the suit property into plots and also be restrained from raising any construction and to maintain status quo. Injunction was also sought against the defendants to restrain them from interfering in the use and occupation of the plaintiff over the suit property.

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2.6. The father (Amar Singh) of the Respondent No.1-plaintiff expired on 14.01.1999. The Respondent No.1-plaintiff is the only successor of late Shri Amar Singh.

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2.7. During pendency of the said earlier suit, relying on Will dated 19.09.1989 executed by Late Smt. Jawahar Kanwar, the

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plaintiff filed another subsequent suit in the year 2002 (Civil Suit No.39/02, renumbered as Civil Suit No.41/2007 and then No.58/2012) for getting exclusive possession of same suit property, grant of damages and permanent injunction. Plaint was later amended pursuant to an order dated 22.04.2015.

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The Defendant No.1 (petitioner herein) filed written statement contesting the suit. He pleaded, inter alia, that the will dated 19.09.1989 of Smt. Jawahar Kanwar set up by the plaintiff was false and fabricated. That the Respondent No.1-plaintiff - Ajay Singh had already filed a suit with regard to property in question. If he wants to raise any other claim, he can amend the previous suit. However, he has no right to file a new suit for the same property and against same parties.

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3.1. The Defendant no.2, Rajveer Singh also filed his written statement and denied the claim of the plaintiff. The Defendant no.3 did not appear in the trial proceeding. Learned trial court proceeded ex-parte against him.

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3.2. Learned trial court, on the basis of pleadings, framed the issues for adjudication of the dispute between the parties.

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After 19 years of filing of the subsequent suit, the petitioner herein (Defendant No.1), suddenly filed an application dated 23.02.2021 (Annex.6) under Order II Rule 2 & Order VII Rule 11 CPC. He stated therein that the subsequent suit (Civil Suit No.39/2002, renumbered as Civil Suit No.41/2007 and then renumbered as Civil Suit No.58/2012) is barred by the provision of Order II Rule 2 CPC. Plaintiff cannot file a different suit for same

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relief. Plaint deserves to be rejected under the provision of Order VII Rule 11 CPC.

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The plaintiff filed the reply to the application under Order II Rule 2 CPC, seeking dismissal thereof.

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In course of trial, defendant-petitioner filed yet another application dated 25.03.2021 under Section 10 r/w 151 CPC. He stated therein that for the same property and between same parties a previous suit filed in the year 1997 (renumbered as Suit No.369/2000 - LRs of Amar Singh and Hari Singh and other), was already pending before the Court of Addl. Civil Judge (Sr.Div.) No.3, Jodhpur Metropolitan.

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6.1. It is pleaded in application that the subsequent suit cannot proceed until the previous suit is not decided between the same parties and for same property. Therefore, the proceedings of the subsequent suit were sought be stayed till the final decision of the suit filed in the year 1997 (renumbered as Suit No.369/2000 - LRs of Amar Singh and Hari Singh and other).

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The plaintiff-respondent filed a reply to the application filed under Section 10 CPC. He stated that the application has been moved with ulterior motive to cause delay in the trial. He though admitted that the previous suit is pending before the Court of Additional Civil Judge (Sr.Div.) No.3, Jodhpur Metropolitan, but stated that the disputes in two suits are not co-related directly or indirectly. Further, it was asserted that at the time of filing the previous injunction suit, the plaintiff was not aware of the will dated 19.09.1989 executed of Smt. Jawahar Kanwar in his favour. The previous suit is only for injunction, whereas the subsequent

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suit is for getting of the decree of possession and damages with a consequential relief for permanent injunction. Thus, the proceedings of the subsequent suit cannot be stayed.

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After hearing the parties, the learned trial court dismissed both the applications- one under Order II Rule 2 CPC and the other under Section 10 of the CPC vide common order dated 20.04.2023. The trial court, inter alia, opined that both the suits are not similar.

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In the aforesaid backdrop, I have heard the rival contentions and perused the case files. 10. Learned counsel for the petitioner would contend that the order passed by the trial court is non-speaking order, without any reason and passed without considering the scope of Section 10 and / or Order II Rule 2 read with Order VII Rule 11 of CPC.

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10.1. Furthermore, he contended that learned trial court has reasoned that the relief claimed is different, whereas the provision of Section 10 does not relate to similar relief. It provides that the matter in issue of the suit is directly and substantially similar to the previously instituted suit between the same parties.

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10.2. He would also contend that from a bare perusal of the pleadings in the suit filed in the year 1997, it is clear that the parties (plaintiff and the defendant) are the same and the subject matter of the suit (property in question) is also the same. Therefore, the application under Section 10 of CPC deserves to be allowed and the proceedings of the subsequent suit deserve to be stayed until the previous suit is decided.

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Per contra, learned counsel for the respondents urged that the petitioner earlier preferred SB Civil Revision Petition No.118/2023 (Hari Singh v. Ajay Singh & Ors.) before this Hon’ble Court laying challenge to the order dated 20.04.2023, which was dismissed vide order dated 19.09.2023. Subsequent instant petition is liable to be dismissed on that ground alone on the principle of res judicata.

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11.1. Furthermore, the suit has been pending consideration for past 22 years (Civil Suit No. 369/2000). Both the belated applications preferred by the defendant – petitioner under Order II Rule 2 & Order VII Rule 11 r/w Section 151 CPC have been rightly dismissed by the learned trial court.

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11.2. Both the Writ petitions preferred by the petitioner are not maintainable as there is an effective alternative statutory remedy under the provisions of the CPC. As per Section 115 CPC only a revision petition is maintainable against the orders passed by the learned trial court and not the writ petition. He also pointed out that in fact, the petitioner had earlier filed SB Civil Revision Petition No. 118/2023 against the same impugned order, which was rightly dismissed vide order dated 19.09.2023 passed by a co-ordinate Bench of this Court.

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I shall now proceed to deal with the rival contentions. 13. Adverting first to the last argument of learned counsel for the respondents qua maintainability. To my mind, the case clearly falls within the ambit of Section 115 of CPC. Said section reads as below :-

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“115 Revision :-

(1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court appears- (a) to have exercise a jurisdiction not vested in it by law, or

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(b) to have failed to exercise a jurisdiction so vested, or

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(c) to have acted in the exercise of its jurisdiction illegality or with material irregularity,

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The High Court may make such order in the case as it thinks fit.

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Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the court of a suit or other proceeding, except where the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.

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(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.

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(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other proceeding is stayed by the High Court.

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Explanation--.In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceeding.”

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(emphasis supplied)

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13.1. Let us break down the above provision, step by step, for its

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better comprehension. For convenience, words subordinate court

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used in Section 115(1) are being read as trial court.

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Power of the High Court to Call for Case Records

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The jurisdictional High Court is empowered to call for the record of any case decided by a trial court when no appeal lies to the High

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Court against an order passed by trial court.

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Circumstances for Intervention

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Three contingencies when High Court can intervene in an order passed by the trial court are :

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i. Exercised Jurisdiction not Vested in it:

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If the trial court appears to have exercised a jurisdiction

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that is not legally vested in it.

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ii. Failed to Exercise Jurisdiction:

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If the trial court failed to exercise a jurisdiction that is

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legally vested in it.

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iii. Acted Illegally or with Material Irregularity:

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If the trial court acted in the exercise of its jurisdiction illegally or with material irregularity.

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High Court's Power to be exercised only when trial court order finally Disposes of the Suit or Proceedings:

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The proviso to Section 115(1) ibid essentially outlines the exceptional circumstances under which a High Court can intervene to vary or reverse an order passed by the trial court. The High Court can intervene if the order, in case, passed in favor of the party filing a revision petition, would have finally disposed of the suit or any other proceedings. Thus, no doubt, there is very limited room to interfere under Section 115 of CPC, i.e., at the cost of repetition, only in those decisions of the trial courts where the outcome of the order passed ultimately concludes the entire trial itself. The restriction serves as a safeguard against unnecessary interference in the trial court decisions when the trial is still pending.

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In the present case, favourable order passed under Order VII Rule 11 CPC read with Order II Rule 2 CPC would conclude the entire civil suit itself. It thus seems that the writ petitions preferred by the petitioner are not maintainable in view of the equally effective alternative statutory remedy under Section 115 of the CPC.

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Indisputably, the petitioner had, in fact, earlier preferred SB Civil Revision Petition No.118/2023 (Hari Singh v. Ajay Singh & Ors.) before this Court laying challenge to the same impugned order dated 20.04.2023. The Civil Revision was dismissed vide an order dated 19.09.2023 passed by a Coordinate Bench presided over by my learned Sister Rekha Borana, J. The relevant part of the said order is as under:

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“6. A perusal of the record shows that after filing of the present revision petition in the month of June 2023, Civil Writ Petition No.6843/2023 was listed before the Court on 04.07.2023, 17.07.2023, 01.08.2023 and 19.08.2023. Had the counsel any intention to withdraw the said writ petition, a prayer qua the same could have been made before the Court but no such prayer seems to have been made.

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7. This Court is of the clear opinion that no party can be permitted to pursue two parallel proceedings assailing the same order. Admittedly, the order impugned has been assailed by way of writ petition as well as revision petition. Further, the fact of the writ petition already having been filed has also not been disclosed in the present revision petition.

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8. In view of the same, the present revision petition is dismissed on the sole ground of concealment of facts and cause of the fact that the order impugned has already been assailed by way of a writ petition. Stay petition and all the pending applications, if any, stand disposed of.

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9. Needless to say that the petitioner would be at liberty to raise all his grounds on merit qua the order impugned in the pending writ petition if law so permits.”

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(emphasis supplied)

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The petitioner cannot pursue the present writ petitions

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and/or be allowed to raise herein his grounds on merits qua the impugned order as the law does not so permit. The position would not change or improve for the petitioner merely because the instant writ petitions were filed before the filing of SB Civil Revision Petition No.118/2023 (Hari Singh v. Ajay Singh & Ors. In my opinion on this short ground alone, the instant petitions are liable to be dismissed as the proper remedy indeed was civil revision under Section 115 of CPC.

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Be that as it may, even otherwise, on merits too, having perused the impugned order and the other relevant record, I am of the opinion that both these petitions deserve dismissal. Let us see how.

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17.1. The application under Order II Rule 2 read with Order VII Rule 11 r/w Section 151 CPC filed by the applicant/petitioner is marked as Annexure-9 along with the writ petition. As per para 1 of the application, the Respondent no.1-plaintiff filed suit for perpetual injunction on 21.01.1997 in his capacity as LR of Smt. Jawahar Kanwar, who died on 23.06.1994. It has been mentioned in the plaint that at the time of filing the earlier injunction suit on 21.01.1997 the plaintiff-respondent was not aware about the execution of registered Will dated 19.09.1989 by Smt. Jawahar Kanwar.

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17.2. Subsequently, another suit for recovery of possession, mesne profit and perpetual injunction (Annex.1) was filed by the Respondent no.1-plaintiff in the year 2002. The later suit is to assert rights on the basis of registered Will dated 19.09.1989 executed by Smt. Jawahar Kanwar in favour of the plaintiffRespondent no.1.

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The trial court framed issues way-back on 26.10.2004, as is borne out from Annex.5 appended with the petition. Specific issue No.5 has also been framed whether Amar Singh, as on 21.01.1997, was aware of the Will dated 19.09.1989. It proceeds on the plaintiff’s plea in the plaint that at the time of filing the earlier injunction suit on 21.01.1997, the plaintiff/respondent was not aware about the execution of registered will dated 19.09.1989

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by Smt. Jawahar Kanwar. In such an eventuality, there was no question of his having intentionally relinquished or omitted to raise his claims based on the Will. This issue has yet to be decided.

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The Learned trial court while passing the impugned order rightly observed that for attracting the bar of Order II Rule 2 CPC, the applicant/petitioner was required, but had failed, to show that the relief claimed in the subsequent suit was available to the plaintiff-Respondent No.1 at the time of fling the previous suit. And, the same had been intentionally relinquished or omitted by him.

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Plaintiff’s claim for exclusive possession and damages in the subsequent suit is thus founded on the Will dated 19.09.1989 executed by Smt. Jawahar Kanwar. If, as pleaded, at the time of filing the previous injunction suit, the plaintiff was not even aware of the said will, it cannot be said that he had intentionally relinquished or omitted to sue for the claim for exclusive possession and damages raised in the instant suit.

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In any case, until the adjudication of aforesaid specific issue No.5 (whether Amar Singh, as on 21.01.1997, was aware of the Will dated 19.09.1989), again it cannot be said that at the time of filing the previous injunction suit, the plaintiff had intentionally relinquished or omitted to sue for the claim for exclusive possession and damages raised in the instant suit. At this stage, the petitioner’ application for dismissal of the suit under Order II Rule 2 CPC ibid is thus not maintainable.

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As regards, section 10 CPC, in my view, it would apply only if there is identity of the matter in issue in both the suits. Meaning

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thereby, that the whole of the subject matter in both proceeding (including the relief claimed) is identical. Here, the previous suit was only for an injunction while the later suit is for getting possession of suit property, grant of damages and permanent injunction. I, therefore, reject the contention of the learned counsel for the petitioner that section 10 CPC is applicable to the case.

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Order VII Rule 11 CPC provides that the plaint shall be rejected in the contingencies specified therein. None of those contingencies is shown to exist in the present case. The petitioner’s contention for rejection of plaint cannot, therefore, be accepted.

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Thus, seen from any angle, both the applications, ibid, have been rightly rejected by the learned trial court.

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Apart from merits, there is another significant lapse on the part of petitioner which cannot be countenanced. It so appears that the petitioner–defendant is merely trying to prolong and delay the suit proceedings. The suit, out of which the present petitions arise, had been filed way back in the year 2002 and is pending at the stage of evidence. A highly belated application dated 23.02.2021 under Order II Rule 2 r/w Order VII Rule 11 CPC was filed after a delay of 19 years. Not only that, the other application dated 25.03.2021, under Section 10, seeking a stay on the further proceedings, is also equally belated. Crossexamination of the plaintiff’s witnesses was carried out on 27.09.2005, followed by 02.09.2006 and then on 18.11.2023.

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25.1. Such type of objections are to be taken at the very threshold after the suit is filed in order to avoid unnecessary delay or conflicting judgments being rendered on the same issue by two different courts. Both the applications are thus liable to be dismissed at such belated stage.

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25.2. The petitioner-defendant slumbered long over the case. He filed the aforesaid applications after hopeless delay of more than 19 years.

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In the premise, no fault can be found with the impugned order dated 20.04.2023 (Annex.11) passed by the learned Additional District Judge, Jodhpur dismissing the petitioner’s two applications i.e. one under Order II Rule 2 CPC r/w Order VII Rule 11 CPC for dismissal of the suit and the second under Section 10 CPC r/w Section 151 CPC for staying the further proceedings of said subsequent suit filed by the plaintiff.

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As an upshot, no grounds to interfere. Both the Writ petitions are dismissed. Trial to proceed further in accordance with law.

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(ARUN MONGA),J

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Rmathur/-

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Whether fit for reporting : Yes / No

Hari Singh v. Ajay Singh

Case brief

What is this about?

What did the court decide?

Hari Singh v. Ajay Singh

Case brief

What is this about?

What did the court decide?

What the court decided

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